How to Get a Divorce
A step-by-step guide.
Barring unforeseen circumstances, I will have just obtained my divorce by the time you read this. It’s been a long procedure, starting back in September of 1993 when my ex first mentioned the “D word.” While divorces are certainly obtained in a much shorter timeframe, I don’t think that my experience is out of the ordinary range for those with children of the marriage to consider. I’ve learned quite a lot in the process, and would like to share with you my experience in the hope that it might save you some time, money, and/or grief in your own divorce proceedings.
All names (including my own) have been changed to protect the privacy of the parties involved. The events listed are true, and illustrate the process and pitfalls of obtaining a divorce. I should also caution that I have no legal training, and have tried to stay away from legal jargon as much as possible. Consult a lawyer before getting into any actual separation or divorce proceedings.
DO YOU REALLY WANT A DIVORCE?
The first step is to try everything possible — including mediation, therapy groups, the clergy, an uninterrupted vacation, your closest friends, and whatever else might help — to try and keep your marriage together! If you have children of the marriage, all the more reason to try your hardest to work things out with your spouse. (I hasten to add, however, that keeping a bad, acrimonious marriage together “for the kids” isn’t really in your children’s best interest. There is plenty of literature available on this subject; or consult a child therapist.)
You might think that things have deteriorated too far in your marriage to be able to save it, and that a divorce is your only option. But except for cases of chronic physical or emotional abuse, there’s almost always some hope. Investigate all such avenues! If you think that a divorce is going to be easy, and that it’s going to solve all of your problems, think again. Divorce is hard, time-consuming, and can be quite expensive — financially and emotionally. Go back and work one more time on saving your marriage; if successful, you may find it even stronger for the “close call,” and you’ll likely become much more intimate with your spouse and your children because of the effort expended and your new perceptions of what your marriage really means to each of you.
Don’t scream out “I want a divorce!” in the middle of a heated argument. If this piece of advice has come too late for you, don’t panic. Try to talk things out as calmly as possible with your spouse. You’ve at least obtained his or her attention in the matter. Now try to set things right.
THE DIVORCE ACT
The goal of a divorce is to receive a favourable Divorce Judgment under the Divorce Act, in response to your unilateral or (rarer) joint Petition for Divorce. Since 1986, the Divorce Act is a federal law made by the Parliament of Canada, administered equally across all provinces and territories. Only the superior court of each province has jurisdiction to deal with a Petition for Divorce; in Ontario, this is the Ontario Court (General Division).
The Act stipulates the sole grounds for divorce as marital breakdown, and provides for three basic ways for proving it:
- You and your spouse have been separated for one year. This is certainly the easiest to prove, and is by far the most commonly used grounds for divorce. Note that you can initiate divorce proceedings at any time after you’ve separated; the Divorce Judgment will be granted some time after the 12 months of separation are complete. The period of separation must be uninterrupted, except that the Act allows for periods of attempted reconciliation lasting for 90 days or less; such periods don’t “reset the clock” on your separation. However, if you live together for 91 days or more and then re-separate, the 12-month cycle starts again. The reason for your separation doesn’t matter; all that matters is that you are in fact separated. Note too that it’s possible to deem yourselves as “living separate and apart” while within the same dwelling, although this is more difficult to prove. You must be living entirely independent lives — each doing your own cooking, laundry, and home maintenance for example — and of course not sharing the same bed.
- Your spouse has committed adultery. You don’t have to name the person with whom your spouse committed adultery unless you’re making some coincident claim against that party. And you needn’t actually find your spouse in bed with the other party; you need only establish a high probability that adultery occurred, for example by their spending a night together in a motel — especially if not denied by the adulterous spouse. The simplest way to prove the adultery is if your spouse is willing to admit it (in an affidavit). In the Petition for Divorce, you must swear that there has been no collusion or connivance between you and your spouse. Therefore, you can’t invent the adultery simply as a means of obtaining a divorce. The act must have truly occurred, and it must not have been condoned by you. For example, extramarital sex within an “open marriage” doesn’t count. There are two other ways to prove adultery: by examination for discovery, and by court appearance. While each of these procedures is relatively straightforward, the detail of each is beyond the scope of this short article.
- Your spouse has treated you with intolerable mental or physical cruelty. Cruelty as grounds for divorce has produced the greatest volume of controversy and court precedent — but please don’t let that dissuade you from divorce if repeated abuse has occurred in your marriage. The courts have interpreted cruelty as conduct that would render intolerable your continued cohabitation. So, if your spouse causes unnecessary pain to you, either physically or emotionally, you may have grounds for a divorce. If you decide to proceed on these grounds, you must be able to show that the cruelty was of a “grave and weighty” nature, and not due to trivial incompatibilities or temperament between you and your spouse. The test of cruelty is quite subjective, and may vary substantially by circumstance and the parties involved.
GROUNDS FOR DIVORCE
To find out about the Grounds for Divorce, click here.
DO YOU NEED A LAWYER?
You might be able to process your divorce without the services of a lawyer. Here is a list of circumstances that absolutely must apply to you if you are considering handling the divorce yourselves:
- You are able to prove marriage breakdown conclusively per one of the three valid grounds outlined above.
- Your proof of marriage breakdown doesn’t require a court appearance (e.g. for proving cruelty).
- The divorce will be uncontested.
- There are no children involved, or you and your spouse are in complete agreement regarding contentious issues such as custody, access, and support.
- Your spouse isn’t opposing any of your claims to property, or vice versa.
- You are able to serve your spouse with the Petition for Divorce (i.e. he or she is living in Canada and isn’t avoiding the service of the documents).
- You possess sufficient mental and emotional strength, meticulous attention to detail, and perseverance to embark upon a relatively difficult and time-consuming task.
If you meet all of these criteria, a quality do-it-yourself kit — such as the Divorce Guide for Ontario: Step-by-Step Guide for Obtaining Your Own Divorce, by Gloria Epstein and Sandra Meyrick (Self Counsel Press) — will provide a good introduction to the divorce process. If your divorce is very simple, the Divorce Guide, and its mail-in request for the necessary forms, may be all you need. But if things turn nasty, or if you suspect your spouse is trying to trick you into agreeing to a settlement that might not be in your best interests, you’ll need to consult a lawyer — who may end up having to charge you even more to undo what you’ve already done.
You’ll need at least the following documentation in order to proceed with a Separation Agreement or Petition for Divorce. Gather everything together as soon as possible so that you can find out what might be missing and submit any requests for information as early as possible.
- Your Marriage Registration document. The Certificate of Marriage obtained at your wedding might not be enough to prove your marriage to the court. You’ll need a certified copy of the registration of your marriage. If you were married in Ontario, write to the Office of the Registrar General, P.O. Box 4600, Thunder Bay, ON P7B 6L8, providing the details of the marriage (full names of spouses, place and date), and a certified cheque or money order for $22.
- Full addresses and phone numbers of both parties.
- Full names, birth dates, and addresses of all children of the marriage, their school and grade.
- Information about any prior marriage of either spouse, including a certified copy of the divorce decree.
- A copy of any domestic contracts (e.g. a pre-nuptial agreement).
- Information about any previous legal proceedings between the spouses or involving any of the children.
- Dates and particulars about any previous separations, attempts at reconciliation, or marriage counselling.
- Your previous year’s income tax return, and the Notice of Reassessment from Revenue Canada if available.
- Information about your current income, e.g. a current pay slip.
- A list of substantial assets and liabilities of both spouses.
THE SEPARATION AGREEMENT
Clearly, the easiest way to prove marriage breakdown is by living separate and apart for a year or longer. There’s no such thing as a “legal separation”; you are legally separated by the simple act of living apart. While living apart, however, you’ll probably want to be protected by a Separation Agreement, which spells out in detail matters such as financial relief, child custody and support, visitation rights, and division of property.
Because there’s often a lot of time and work involved in drafting and finalizing a Separation Agreement, you should know that you may apply to the court for Interim Support; the judge may then direct your spouse to pay a certain sum of money each month to you for support of you and the children of the marriage (assuming you have interim custody). The eventual Separation Agreement will contain a clause saying that it supersedes the Interim Agreement. You don’t always need an Interim Agreement: perhaps you can manage quite well on your own without any financial help from your ex; or if you’re amicably separated, you can create a simple written agreement stating that your spouse will give you an agreed-upon sum on the first of each month. (It needs to be written down and signed by both parties so that the amounts paid can be tax deductible by the payer; more on this later.) Jane, my ex, and I handled things this way just fine — and saved the trouble and possible animosity involved in preparing a formal Interim Agreement. Having an existing Separation Agreement in force greatly simplifies the subsequent filing of a Petition for Divorce. All that will be needed in your petition is a statement to the effect that “we have a Separation Agreement and want to keep it in force after the divorce.” Lacking a Separation Agreement, the Petition for Divorce will have to address all of the same sorts of issues anyway. So having the Separation Agreement drawn up early is a wise investment.
Until your Separation Agreement is finalized, your lawyers will probably demand that any moneys under possible dispute be placed “in escrow.” This means that neither of you will have access to the money; it’ll be managed in one of the lawyers’ names until everything is settled. However, if both parties agree in writing, just about anything can be done with that money. For example, Jane and I decided that we’d each take out $20,000 for our initial expenses of setting up separate residences. I was certain that I’d be paying her more than $20,000 as our ultimate division of property, so there was no “risk” to me in agreeing to this. The amount already received by Jane was of course accounted for in the final property division.
Also, the money needn’t sit in a low-interest savings account. If you think that finalizing the Separation Agreement may take several months, and if you both agree in writing, you can direct the lawyer to invest the escrow money in a 30-day GIC, renewed each month as necessary, so that it’s earning a bit more interest while things are in progress.
To arrive at the equitable distribution of marital property, and for the proper amount of child support (if any) and/or spousal support (if any) within the Separation Agreement, one of the first things that will be required of you is to fill out a detailed Financial Disclosure document. And I do mean detailed! (This is where I got bogged down.)
You’re expected to itemize and put a reasonable and provable dollar value on each and every item that (a) you brought into the marriage, then (b) that you had on the date of your separation (called the “valuation date”), and (c) that you have in your possession at the time of signing the disclosure. So off you go for the next two months or so trying to track down bills for stuff you purchased before your marriage, getting your bank to print out reams of paper for your bank account and RRSP balances the day before your marriage (which is quite involved and expensive if that date was more than 10 years ago, and if like me you switched banks a few times due to moves between cities, and like me some of those cities were foreign), gathering slips of paper to prove the outstanding balance of your mortgage and your company stocks before you married, the value of the car and motorcycle and canoe and what-have-you on the three dates, and ad infinitum.
In the meanwhile, your lawyer has enlisted the services of an actuary to determine the value of your company pension plan at the three dates. But because your pension plan has changed from “defined benefit” to “defined contribution” in the midst of your marriage, the calculations are extremely complex and subject to plenty of actuarial best-guessing. And it’s getting expensive.
Whew! You’re finally through with it, all filled out, signed and delivered to your spouse’s lawyer. Now, you find out that it’s the duty of the other lawyer to go over your figures carefully and demand proof of anything in question. So back you go to the books and the bank requests and, oh! you have to also get an appraisal on that house brought into the marriage (at its approximate value the day before the marriage) — but since you sold it, it’s changed hands three times and is now occupied by uncooperative renters.
Sigh. You get the idea. With the possible exception of folks who are meticulous record-keepers, gathering the necessary evidence to support your financial disclosure document can be a nightmare. All I can advise here is “keep at it,” since the problem won’t get solved by itself. It’s easy to procrastinate, but it’s unlikely that you’ll be able to get your Separation Agreement truly underway until the financial disclosure is complete and acknowledged true by “the other side.”
And here’s where the trust and goodwill you’ve been building during your separation — by treating your ex with courtesy, scrupulous honesty, and kindness — starts to pay off. In our case, Jane recognized that the delays and expense in obtaining some of the documentation simply wasn’t worth the couple of hundred bucks she might have gained in the ultimate property division. She knows — because I demonstrated it to her over and over again — that I have no desire to cheat her or our children out of anything. This allowed us to reach a fair settlement without my spending another $1,500 and several months trying to gather more documentation. Thank you, Jane! The dollars are far better spent on our children than for appraisers and banks.
DIVISION OF PROPERTY
One of the prime reasons for the full financial disclosure of each spouse is to arrive at an equitable distribution of the property accumulated during your marriage. Property rights differ from province to province. Also, a pre- or ante-nuptial agreement may alter your rights to the other’s property. This is a complex topic, but happily we have a separate article on this website dedicated to it. Please see “Who Gets What” in the Money Matters section.
The other reason for the financial disclosure is to itemize your income and expenses (actual and proposed) so that the lawyers or the court can decide if one of the spouses should provide financial support to the other. If children are involved, the non-custodial parent will usually have to pay a set monthly amount for Child Support. Another amount may be determined payable for Spousal Support (formerly called “Alimony”).
Each of these amounts will have a set start and end date. Typically, child support continues until the children are 18, or until they finish their university education, or may terminate prematurely at 16 if the child chooses to drop out of school, move away from home, and separate him or herself from parental influence or control. Spousal support payments may continue for a year or longer– perhaps forever in longer marriages. These payments are generally intended to be used for help in getting the former spouse back on his or her feet again: the payments could be used for university tuition and a nanny for the children while he or she attends classes, which should help the former spouse to become gainfully employed in due course.
On May 1, 1997, new Child Support guidelines came into effect, which are actually more than guidelines — they stipulate exact dollar amounts to be paid based upon the number of children and the non-custodial parent’s income. No provision is made for the income of the custodial parent. That is, any child support payment will be the same whether they earn nothing or a six-figure salary. Also — and this is very important to consider — the payer can no longer deduct the amount of payment from his or her income for tax purposes, and the recipient doesn’t include the payments received in her or his income.
Under the old plan, child support payment guidelines existed, but they were truly guidelines, which could be adjusted somewhat depending on the circumstances of both parties. And under the old plan, the payer deducted the amounts paid from his or her taxes (thereby reducing the amount of taxes paid), while the recipient had to claim the money received and pay tax on it. In the most common situation, with the higher wage earner paying child support to the lower wage earner, tax considerations generally favour the old system: the deduction taken by the higher wage earner would reduce the tax payable by more than the amount of tax paid (at a lower rate) by the lower wage earner.
THE FAMILY SUPPORT PLAN
Either spouse has the right to file the details of the support orders (e.g. from a Separation Agreement or Divorce Judgment) with the Family Support Plan (FSP) offices. If you do, they will order the payer’s employee to garnish wages at the source in the amount of support payable. The money is routed to the FSP, who then mails a cheque for that amount to the payee. In theory, there are two advantages to this system:
- Since the payment is extracted from wages up-front, the enforcement of payments is higher. Except for self-employed or unemployed persons, it’s now virtually impossible to avoid paying what’s due.
- The amount of wages garnished is immediately known to the employer, who can thus reduce the amount of income tax withheld for the employee.
Unfortunately, all is not well with the FSP right now. There have been some disturbing problems with the administration of the payments. Although the money is being collected through the garnishing of wages, it isn’t getting to the payee on time. They had problems with the computer systems, then with administrative procedures, then with the closing of eight regional offices, and so on. There’s been a lot of high profile activity to try and get things running smoothly again, but there are apparently still many problems.
If you are the payee and your spouse (the payer) is trustworthy and making payments on time, consider sticking with the direct-payment “old fashioned” approach for now. Hopefully the FSP will get its kinks ironed out eventually, and then you might want to opt for it. But until things improve, I’d stay away from it if possible.
Note that if you’re making payments to your spouse under the “old plan” (with you deducting the amounts paid from your income for tax purposes, and your spouse claiming it as income), and if you’re not participating in the FSP, you’ll need to submit an application to Revenue Canada Taxation for the reduction of your tax withheld at source. You attach a copy of your support agreement outlining the amounts to be paid in the coming year, and Revenue Canada will send you a letter that authorizes the reduction of tax withheld. You then forward a copy of that letter to your employer’s payroll department to have the change made. You’ll have to reapply each year (while your support payments continue) for the reduction. Call your nearest Revenue Canada office to request the application form.
CHILD CUSTODY AND VISITATION RIGHTS
The Support Agreement (or the Petition for Divorce if no Support Agreement is in force) will stipulate the custody of the children (under 16 years of age) and the visitation rights by the non-custodial parent. These items are surely the most important in your agreement — especially if your separation has been anything less than amicable. If there’s even a hint that one parent will file for sole custody, you really need to consult a lawyer.
Initially, both natural parents have equal rights to custody. When you separate, you can still maintain this joint custody arrangement although one of the parents may spend a disproportionate amount of time actually caring for the children. Having joint custody means that neither spouse can act independently in major matters — such as authorizing non-emergency surgery, or choosing a school or a religion for the child — without the consent of the other.
You and your spouse need to work out the custody arrangements. If you can’t — for instance, if both of you want sole custody — then the court will have to decide. In all cases, the judge will put the best interests of the children first and foremost. Even if sole custody is granted, the court recognizes that in the majority of cases, the children are best off when both parents are involved in their upbringing. Discuss any concerns with your lawyer.
As with the custody decision, the courts prefer that you and your spouse work out access or visitation rights. Jane and I have written into our agreement that I have access to the children every second weekend, including the extra days of long weekends, three weeks during the summer holidays, a week at March break, and a week at Christmas break. The agreement also spells out reasonable amounts of unencumbered communication by telephone, fax, e-mail, and regular mail. As I mentioned, Jane and I have a very amicable relationship, so I can and do enjoy seeing the kids at other times. I know that Jane appreciates me spending the extra time with them, as much as the children enjoy seeing me. The point of putting my access rights into the agreement is to protect my interests if for whatever reason our relationship should turn sour. While this is an extremely remote possibility in my situation, having everything in writing is a simple insurance policy; my rights are now protected by law.
PETITION FOR DIVORCE
With a Separation Agreement finalized, the Petition for Divorce is a fairly simple document. It basically affirms the wish for a divorce, the grounds for the divorce, and that there’s no chance of reconciliation. It details the particulars of the marriage, pertinent facts about the children, and current addresses. It confirms the existence of a Separation Agreement and that all of its details — including division of property, support payments and child custody and access arrangements — are still binding after the divorce.
The petition is filed with the court, along with a certified copy of the marriage registration and the required filing fee. It’s now time to have the Petition for Divorce “served” upon your spouse. (This assumes that you are the petitioner; your spouse the respondent. Of course it could be the opposite. Or it could be a joint petition, but there’s little point in adding that extra complication.) The fastest and cheapest way to do this is if she or he will visit your lawyer’s office to sign and pick up a copy of the petition. Or, if your spouse has a lawyer acting for her or him in the divorce matters, the petition can be served on that lawyer. Otherwise, the petition can be served personally; a sheriff may be hired to serve the petition at the spouse’s address. (If your divorce is amicable, call your spouse in advance to warn of the arrival of the sheriff; nobody likes to be surprised by police at their door.)
Once served, the respondent has 20 days if living in Ontario (40 if in another province or in the USA; 60 otherwise) to “defend the proceeding” — that is, to oppose your petition for divorce. The cover of the petition spells this out in detail to the respondent. Assuming no defence is forthcoming, the petition is filed with the court along with an affidavit from each spouse (or a joint affidavit), which basically says that “everything in here is true.” The affidavit is also where you swear that there has been no collusion or connivance in the divorce proceeding.
Your petition now joins the queue of other work awaiting the court where it was filed. It used to take about a month to come before a judge, but recent court backlogs have pushed it back to as much as 90 days in some areas. Finally, if everything is in order with your paperwork, the judge can grant the Divorce Judgment. Often, no court appearance is necessary.
After 31 more days, you can fill in a Certificate of Divorce and take it to the courthouse where the clerk will “issue” it. Your divorce is now finalized! It’s time to celebrate — or more likely, to reflect back on the happy times of your marriage and wonder again how things went so wrong. In any case, you’re now free to remarry if you wish.
THE DOLLAR COSTS
I hesitate to write anything concerning the costs involved in following through this complete process from beginning to end. Every divorce — like every marriage — is unique, and there’s no such thing as “the average divorce.”
If you’re able to do everything yourself, — and nothing’s disputed by your spouse or questioned by the judge, and no court appearance is required — then the various court filing costs total about $300. You have to consider what your own time is worth, however: an experienced lawyer might take ten hours to complete your paperwork, but it might take you a few hundred hours to read up on everything needed, to prepare the documentation (perhaps several times until you get all of the t’s crossed and the i’s dotted), and get it properly filed.
For a simple uncontested divorce, you might also consider using the services of a flat-fee “discount divorce” lawyer, or a paralegal. I’ve seen advertisements for divorces as low as $200 (plus disbursements), though I’ve not researched these at all.
On the other end of the scale, there’s really no maximum. If there are many contentions issues such as the splitting of business ventures or child custody battles, your legal fees and court costs can soar into the stratosphere. So try your very hardest to avoid an acrimonious divorce — even if it means conceding a thing or two that you just know you could win (with enough legal time and money expended).
I’ll tell you what my “average” separation and divorce cost, and you can use it or dismiss it as you please. My lawyer, at $200/hour, cost $3,900 (including disbursements); the actuarial report on my company pension was $550; the house appraisal $400; and about $200 was paid to banks and brokerages for historical documents, for a total of just over $5,000. Jane spent an additional $1,400 for her lawyer (including disbursements); her lower cost was primarily because my lawyer prepared all of the major documents.
I could have reduced my lawyer’s fees somewhat by being better prepared for our meetings. You really don’t want to be paying $200/hour for someone to add up a column of figures for you, or to wait while you fumble through your briefcase for the necessary paperwork.
Now that I’ve been through the experience, I’m sure I’d do it all faster, better, and cheaper the next time around. I’m certain there never will be a next time, however: when I marry again, I’m going to make darn sure it’s forever.
Tom Smith is a recently divorced father of three. He believes that divorce can be civilized if both parties are committed to making it so. “And staying friendly is the only way to do it if you have children,” he says.