7 Steps On How To Get A Divorce (Filing for Divorce)
Are you looking to understand the steps on how to get a divorce?
How should you go about filing for divorce?
What are the steps after you’ve filed for your divorce?
In this article, we will look exactly at that.
We will give you 7 important tips on how to get a divorce.
Let’s get started!
Divorce rates are high
Over the past decades, statistics show that more and more marriages end in a divorce.
Today, nearly half of those who choose to get married will statistically see their marriage dissolved.
When we think divorce, we could think of some nasty legal battle between couples fighting over anything and everything.
We hear about celebrity divorce cases heavily mediatized giving us a pretty grim outlook on what it means to get a divorce.
In real life it does not have to be that way.
Many couples can file for a divorce without destroying each other’s lives.
In a typical divorce case, you will need to reach an agreement on:
- How to divide your family patrimony and assets
- Who will walk away with debts or loans contracted for the benefit of the marriage
- How will you handle your children such as decision-making responsibilities, care and parenting arrangements
- How will you handle child support to financially share your children’s expenses
- Will a spouse need to get spousal support or alimony
If you are emotionally affected by your separation, filing for divorce can become quite a challenging process.
The less you have a divorce case charged with negative emotions the easier it will be on you.
So how to file for divorce?
Step 1: Find a divorce lawyer
Learn more about divorce
To begin the process, you’ll need to do your research and learn more about the general concepts of divorce and separation.
Educate yourself on the divorce basics so you can have a better sense of your rights and obligations.
You are reading this article, you are on the right track!!
Read about how to get a divorce and what services are out there that you can take advantage of.
Some individuals will consider preparing their own divorce application.
They’ll educate themselves by reading articles, blogs, reports and any material they can find online in an attempt to drive the divorce process by themselves.
Look for a divorce lawyer
If you do not intend to file for a divorce yourself, then you’ll need to look for a divorce lawyer.
When looking for the divorce lawyer, there are a few things to look out for.
First and foremost, your lawyer must have the experience and competence to understand your situation and be able to legally guide you in the course of the legal proceedings.
Second, your lawyer must be responsive and act in a timely fashion so that you are confident they will be capable of handling a barrage of legal procedures from the other party if your divorce is contested.
Finally, you should give your lawyer a clear mandate with respect to the services being rendered and the fees being charged.
Your divorce case is already complicated as it is, you do not want additional complications with your lawyer.
Once you have found your divorce lawyer, you can get your lawyer to prepare your divorce papers.
Step 2: Prepare your divorce application
All divorce cases will formally start with the filing of a divorce application in the record of the Court whether the couple is filing amicably or not.
Filing of a joint divorce application
In the case where you both agree on collaborating and settling the entire terms of your divorce, you can file a joint divorce application based on which you will ask the court to render a divorce judgment.
A joint divorce application is an application signed by both spouses and filed together in court along with all the necessary legal forms and supporting documents.
Filing of divorce by one spouse
If you do not mutually agree to file a joint divorce application, then any one of the spouses can prepare and serve the divorce application and documents to the other spouse.
In this case, the court process is started unilaterally by one spouse.
Nonetheless, even a unilateral divorcer process may be settled amicably if the other spouse receives the divorce papers and signals his or her intention to collaborate to resolve the matter amicably.
You do not need any permission or consent from your spouse to file a divorce application.
So long as you prepare your divorce filing in accordance with the rules of the court and the law, any spouse can ask for a divorce.
When filing for divorce, you will need to include some mandatory information in your divorce application.
For example, you’ll need to demonstrate that you meet the residency requirements imposed by law, you have invoked the proper divorce ground and so on.
Residency requirement
Residency requirements may vary from one province to another but typically the residency requirement is one that will help establish which court has jurisdiction to hear your divorce case.
For example, under the divorce laws in Canada, the residency requirement is that you must be residing in the province for at least twelve months in order to be able to file a divorce application before the courts of that province.
Divorce Grounds
In Canada, there are three grounds for divorce:
- separation for over twelve months
- adultery
- physical and mental cruelty
All divorce applications must provide minimum one or a combination of such grounds.
With regards to the separation for over twelve months, all you need to prove is that you have been separated for over twelve months and that your separation is irreversible.
With regards to the other two divorce grounds, adultery and physical and mental cruelty, you will need to establish the facts based on which the divorce is being sought.
The spouse making the allegation will need to testify to this effect.
Perhaps other evidence may be needed to prove the divorce ground.
Step 3: Service of your divorce papers
At this point, you have decided to get divorced, you have done your research online and also found your divorce lawyer.
You have worked with your divorce lawyer to draft your divorce application along with its supporting documentation.
What do you do next?
Well, the next step is to serve a certified copy of your divorce application along with any supporting documents to your spouse.
You need to gather the evidence that your spouse has received your divorce papers.
As they say, proof that the papers “have been served”!
Bailiffs serve legal documents
The service is typically done via a bailiff or process services in other places.
The cost of a bailiff or a process server is not that high relative to your other divorce fees but it’s a sure and reliable way to ensure you can prove that the divorce application has been served to your spouse.
In some cases, if your spouse makes himself or herself difficult to find for you to serve your papers, a sure way forward is to serve your papers through a bailiff.
Once the bailiff serves the papers, he or she will draw up a proof of service making evidence that your spouse has been served.
Even if your spouse does not open the door for the bailiff allowing the service, the bailiff can leave the papers in front of the door or in the mailbox and validate that the papers have been served.
Proof of service
Take note that the court will generally not accept to hear your case when you have not proven that your spouse has been duly served k.
The court wants to give the chance to any defendant to have the opportunity to review the divorce application, have time to seek advice of a lawyer and respond to the application.
Acknowledgment of receipt
In cases where you and your spouse are handling your divorce amicably, your spouse can acknowledge the receipt of the divorce papers in writing.
That written confirmation will serve as your proof of service.
Service through lawyers
Once a party retains the services of a divorce lawyer, the lawyer will have the ability to legally serve documents to the other party’s lawyer.
When both parties are represented by a lawyer, the personal service of legal documents to the spouse is no longer required.
The divorce lawyer will be the designated representative of the party and could validly receive service or serve legal procedures and documents.
Step 4: Wait for your spouse to respond
Once your spouse receives your divorce application, he or she must respond within the allocated timeline.
Contested legal proceedings
If your spouse has the intention to file an answer or contest your divorce application, you will then start the legal steps in court.
The court proceedings can be somewhat complex for someone who is dealing with the legal system for the first time.
If your case is contested, you’ll need to do your research to see if you should handle your own case or retain the services of a divorce lawyer.
If your spouse has received your divorce application but does not respond, you can proceed by default against your spouse.
Proceed by default
If your spouse does not file any response to your divorce application while duly served, upon the expiration of the required legal delays you can request for the file to proceed by default.
By proceeding by default, you’ll still need to provide the court with the evidence of your family assets, divorce grounds and so on, with the only difference that you’re the only party presenting evidence to the court.
To obtain a judgment by default, you will need to file all the necessary exhibits, documents and supporting material to your divorce application.
The court must be satisfied that you have established and proven your demands.
Upon validation of your divorce application and supporting documents by the court, a divorce judgment by default will be rendered and mailed to you.
Step 5: Negotiate a settlement if possible
Depending on how you and your spouse are able to resolve your disputes amicable, you have the option of negotiating a settlement even if you have filed a divorce application in court.
A settlement is something that the law and the courts will try to favour to the extent possible.
You need to make concessions
When a judgment is issued on the basis of a mutual agreement, in most cases both spouses will feel that they have walked away with a more favorable outcome.
An agreement will require both parties to make an effort on issues and topics in dispute and this effort will require that each spouse make concessions to make it work.
Negotiate a settlement through your divorce lawyers
In cases where you and your spouse are unable to reach an agreement by communicating with one another, another alternative is to engage in negotiations through your lawyers.
Your lawyers will act as the vehicle to pass on and receive your positions to the other party.
Divorce lawyers can help you see the situation more objectively so you can make more rational decisions in your overall best interest as opposed to emotional decisions that may be detrimental.
Negotiation a settlement using the court settlement conference
If negotiations through your lawyers fail, depending on the jurisdiction, the courts may offer a settlement conference where the Court will try to facilitate the negotiation discussions between you and your spouse.
Settlement conferences are particularly effective as they are facilitated by an active judge who will guide the discussions and provide his or her valuable pointers in the attempt to help you reach a settlement.
Negotiate a settlement through mediation
There is also the option of opting for mediation which is a negotiation session facilitated by a mediator in a setting outside of the courtroom.
Any negotiation and settlement route that you select can be very interesting as it will result in significant time savings and particularly will potentially save you lots of money in lawyer fees or other.
As a result, looking at how your case can be settled is a great way to potentially resolve any dispute or outstanding issues so that you can close this chapter of your life and begin a new one.
Step 6: Get safeguard orders in case of dispute
What is a safeguard order
It is inevitable that in some cases, if your separation is more difficult due to a high level of conflict, you may need to seek a safeguard order, or interim order, to help you deal with certain urgent legal issues that cannot wait until the final divorce hearing.
Safeguard orders are effective when you cannot wait a year or two to get to trial to get legal remedy.
You need the judge to make a quick ruling on more pressing concerns that could not wait.
Typically, the use of the family residence, custody matters, child support and spousal support are urgent enough to be dealt with through a safeguard order.
What can be dealt with in a temporary order
For example, if you intend to separate and you have children, then you may need to have your spouse contribute towards the children’s expenses and regularly provide you with child support.
In the event your spouse fails to provide you with the financial support needed to contribute to your children’s ongoing expenses, you can ask the court to issue a safeguard order ordering your spouse to pay child support.
Step 7: Proceed to trial to get final judgment
Divorce trial as last step
If you’ve done everything you could to try to resolve your divorce case without success, then the last step is to proceed to trial.
A divorce trial is a costly venture and so if you have reached the point where you must go to trial, you must be prepared to spend a lot of money on your lawyers and a lot of time in preparing your case.
Present your case to a judge
This is the step where you present your case to the judge.
The final judgment will end your divorce case and the divorce judgment will definitively rule on your differences.
You will need to provide evidence and supporting documents to substantiate what you are seeking from the court.
Once your evidence is presented, your spouse will have the right to present his or her observations and demands as well.
You have no control over the judge’s decision
When your case is presented to a judge, you must understand that you are leaving your fate in the hands of this person.
You will have a far less predictable outcome and, in most cases the court’s judgment will not really be satisfying.
If you are able to avoid your divorce case to go to trial, then you should make an attempt to settle beforehand.
Divorce judgment and the dissolution of your marriage
Once the court has heard all the evidence, saw the documents and considered your demands, following the divorce trial, you will each receive a copy of the court’s divorce judgment.
This judgment will evidently dissolve your marital bond and will also decide on all your demands such as asset partition, child custody and support, spousal support and alimony along with any other demands that were presented.
The divorce judgment puts an end to the divorce proceedings.
Once the delays to appeal the divorce judgment is over, the court will then issue your divorce certificate.
Conclusion
As you can see, a divorce case, on one side of the spectrum can be fairly simple and on the other side of the spectrum, can become quite costly and complex.
In this article, we’ve presented to you how to get a divorce and the steps you need to take to get there.
Our family law firm provides advisory, strategic counselling and legal services in a flexible and innovative manner.
Be sure to reach out to our divorce lawyers for any further support or assistance, we will be delighted to assist you.
