Dealing with the legal system can be a complex and stressing experience, especially when combined with a relationship break-up. We'll help you navigate through the numerous steps required to obtain a separation, divorce, division of assets, support payments and shared custody or access rights.

Who can make a joint application for divorce on a draft agreement?

Married couples may file a joint application for divorce if

• they have been living separate and apart on the date on which the proceeding is filed (but note that the divorce cannot be granted unless the spouses have been living separate and apart for at least one year);
  
  and
  
  
• they have settled all the consequences of their divorce.

What is the difference between a divorce and a separation?

With a legal separation, the spouses are no longer obliged to live together but the matrimonial bond remains and the spouses stay married. For a separation, you do not need to prove certain elements that would be required for a divorce, such as living apart for a year or other reasons.

With a divorce, the marriage is terminated 31 days after the judgment (or as determined in the judgment). A spouse may apply by himself/herself, or both spouses may apply jointly, if they have will have lived separate and apart for at least one year prior to the pronouncement of the judgment of divorce. One of the spouses may also apply on their own (as a contested divorce), regardless of the amount of time living apart, if they want to end the marriage on the basis of adultery or physical or mental abuse.

Both legal separation and divorce have similar objectives that should be determined, including establishing custody and access rights, child or spousal support, and dividing assets.

So should we start an application for a joint (uncontested) divorce even if we haven't been living apart for twelve (12) months?

Yes. We recommend you start the process as soon as you are ready, since certain steps of your negotiations for dividing assets may take some time. That is, you may want or need to spend some extra time deciding between yourselves who should get what once you are divorced. If the negotiations are stalling on certain issues, you may want to consider our consultation services. We can inform both of you what items and what categories of finances should be considered, on the taxation advantages and disadvantages for each spouse. The application itself will be filed once you've been living separate and apart for at least one year.

What if one of the spouses is receiving Social Assistance/welfare payments, and the both of you want to make an agreement to include child support?

The Minister of Employment, Social Solidarity and Family Welfare must be informed at least ten (10) days before the agreement is presented in Court. For more details, contact the government agency. If you request our one of our Full Service packages, we will handle the mandatory notification for you.

Which province do I file in? Do I file in the province I got married in?

The application for divorce should be filed in the province you are residing in. In Quebec, you typically must reside in the province for at least one year to meet the requirements.

What if I can't locate my spouse?

Since a joint application requires the consent of both spouses, you will need to file a regular Motion for Divorce. Contact us for more details.

What if my spouse does not want to cooperate?

You may explain to your spouse the additional time and enormous expenses involved when a divorce is contested. When one spouse wants a divorce and meets the provincial requirements to apply (see our Laws section), he or she will eventually get it. At first, one of the spouses may be uncooperative because of the emotions, financial stakes and/or children involved. We can still help you prepare proceedings so that all the information is laid out in neutral terms, giving the other spouse a clearer picture of the situation, and you may also hire us for consultation services to better explain the process and sort out certain disagreements. If that still does not resolve the issue, we also have extensive experience in contested divorce proceedings and you may request that we represent you as attorney.

Will an agreement that seems unfair to one of the spouses and/or the children be accepted ?

You may be asked by the judge to file an amended agreement if the judge finds that certain clauses in the agreement do not sufficiently protect the interests of one of the spouses or the children. If that is the case, the divorce will not be granted until you file an amended agreement.

When is the best time to divorce? Should I wait until my children get older?

Research reveals that children who grow up in a hostile, aggressive, and stressful environment may be worse off than children who grow up in a stable divorced or stable single parent scenario. In general, younger children (between the age of three to six) take on some of the blame and may feel responsible for their parents' divorce - whether it is merited or not. Seven to twelve year olds show a decrease in school performance, and teenagers may take on the belief that they could have prevented the divorce and may become critical of or feel hurt by their parents. Despite the difficulties faced before and during a divorce, 67% of all children adjust well to their new environment. As you can see, there is no definite answer as to the best time to divorce as the situation varies from one family to another. You may want to review the situation with a family counsellor to help balance your personal needs with those of your children.

More Questions & Answers:

Be sure to also check out our section on Uncontested divorce vs Contested divorces for more answers on divorce and separation issues.