Before the Petition for Divorce
Prior to asking or “petitioning” for divorce, most couples resolve many of the legal issues related to the dissolution of their marriage by separation agreements or interim court orders, which are later incorporated into the final divorce order. If you have neither children nor assets, you and your ex may simply go your own way with no formal action being taken unless one of you wishes to remarry.
Assuming you’ve managed an amicable separation, you should still formalize it with a written separation agreement at some point, particularly when children are involved or where there are significant assets or debts.
I remember being called by a reporter to comment on the unfairness of a situation where an ex-wife was being held accountable for her ex-husbands debts years after the divorce. The woman had never had her name removed from the loan agreement when her husband assumed the debt, so when he declared bankruptcy, the bank saw her as their only recourse for recapturing their loss.
This is a typical example of how we perceive the divorce itself as the finalization of all connection with the past. That’s only true if we’ve put all the pieces in place for the divorce to be finalized. If you haven’t done the work to insulate yourself from your prior partner’s indiscretions, consider yourself warned: you’ll still be on the hook.
At this point, one or both of you may consult a lawyer, a family court counselor, a court conciliator, or a mediator. Sometimes people decide to try again at their marriage.
Did you know that a section of Divorce Act requires legal advisors to discuss the possibility of reconciliation with their clients and advise them about reconciliation support services? Course, if you’re adamant about a divorce, your reconciliation speech will probably take all of three and a half minutes.
As you negotiate and before you sign your separation agreement, you should obtain independent legal advice. That means no matter how great you guys get along, no matter how simple the divorce, no matter how far the other guy’s bending over to accommodate you, you can’t use the same lawyer.
Agreements are often negotiated between the two lawyers. You tell your lawyer and he tells the other lawyer and she tells your ex, who tells his lawyer who tells your lawyer, who then tells you. No wonder divorce takes so long and is so damn expensive. If you can’t come to an agreement, your lawyers may refer you to a mediator skilled in helping angry people come to a resolution.
Once you’ve signed the agreement, you can begin divorce proceedings immediately or you can do nothing further until one or the other of you wishes to divorce, perhaps to remarry.
If after the involvement of counselors, mediators, your lawyers, and whomever else you have stirred into your divorce mix the both of you still cannot agree, applications can be made to the court to resolve the issues. Each province and territory has legislation permitting the courts to deal with issues of custody, child support, spousal support, possession of the matrimonial home and division of property.
The actual Divorce Petition requires a lot of information. You can help your lawyer and save time if you already have that available. See the Divorce Petition Checklist for the information you should start gathering. You will also need to file a certified copy of your marriage certificate and a certified copy of the Decree Absolute or Divorce Judgment if either of you have gone the divorce route before.