Here’s How You File for Divorce in Alberta
Every year, approximately 9,000 couples in Alberta face the emotionally and legally complex process of divorce.
Navigating through this challenging journey requires not only emotional resilience but also the right legal guidance to ensure that all aspects of the proceedings are handled with care and precision.
This comprehensive guide from divorce lawyers in Calgary outlines the key steps and considerations involved in filing for divorce in Alberta.
Before You File, You Need One of These Grounds for Divorce
Before initiating divorce proceedings in Alberta, it’s crucial to understand and confirm that you meet one of the legally recognized grounds for divorce under the Divorce Act. There are three grounds to consider:
Separation
The most common ground is separation. You and your spouse must have lived apart for at least one year before the court can finalize your divorce. It’s possible to begin the divorce process within this one-year period, but you cannot complete it until the year has elapsed.
In some cases, financial or other family circumstances might necessitate continuing to live in the same residence, even though you’re separated. If this applies to you, you’ll need to demonstrate to the court that you were indeed living separately during this time.
It’s also permissible to reconcile with your spouse for up to 90 days within this one-year period without resetting the separation clock.
Adultery
This ground is applicable if your spouse has had sexual relations with someone else during your marriage. You can file for divorce on the grounds of adultery as soon as you become aware of it.
Proving adultery in court requires solid evidence or an affidavit from the person who committed adultery.
Cruelty
The third ground is cruelty, which can be a single occurrence of physical or mental abuse that makes continued cohabitation untenable. Acts of cruelty might include physical violence, persistent verbal abuse such as threats or insults, excessive alcohol consumption, or drug abuse.
Like adultery, evidence of cruelty is necessary when filing for divorce on these grounds.
Given the complexities of establishing these grounds in court, consulting with a divorce lawyer in Alberta for legal advice is highly recommended to ensure that your case is appropriately prepared and presented.
You Don’t Need Grounds for Divorce if it’s an Uncontested Divorce.
If you’re pursuing an uncontested divorce in Alberta, the process can be smoother as it doesn’t require you to establish specific grounds for the divorce, provided that you and your spouse agree on all major issues. These include:
Custody: Determining who will have legal and physical responsibility for any children.
Access (Parenting): Agreeing on how both parents will share time and decision-making for the children.
Support: Establishing arrangements for child and spousal support.
It’s important to note that these forms do not cover the division of property. Even if your divorce is uncontested, consider working with a divorce lawyer. In addition to filling and filing all the forms, you will need to demonstrate appropriate division of property and that your children’s interests are protected.
If the court isn’t satisfied with your filing, it can make the divorce process a lot longer. Moreover, any missed details at this stage can cause friction between the former spouses years down the line.
7 Steps to File for Divorce in Alberta
- Statement of Claim for Divorce
The divorce process begins by filing a “Statement of Claim for Divorce.” If you are initiating the divorce, you are referred to as the Plaintiff, and your spouse as the Defendant. Conversely, if your spouse starts the divorce, they become the Plaintiff, and you are the Defendant.
For those needing to address property division concurrently, an alternative document, “Statement of Claim for Divorce and Division of Matrimonial Property,” is available, although it’s not mandatory.
- Return the Statement of Claim for Divorce
After completing the Statement of Claim for Divorce, sign it and submit it to the Courthouse. Ensure that all the information is accurate and that the document meets the required legal standards to avoid any delays.
- Serving the Defendant the Divorce Papers
After the Statement of Claim for Divorce is officially filed at the Courthouse, it needs to be served to your spouse, the Defendant.
The law requires that the papers be personally delivered by someone other than yourself, ensuring an unbiased process and adhering to legal protocols. This step is crucial as it officially informs the Defendant of the ongoing legal action.
If personal service proves challenging or impossible—perhaps due to the Defendant’s unavailability or refusal to accept the documents—you can request an Order for Substitutional Service from the Court. This order allows you to serve the papers in an alternative manner, ensuring compliance with legal requirements even under difficult circumstances.
Additionally, if the Defendant resides outside of Canada, you’ll need to obtain an Order from the Court to serve them internationally, adapting to their geographic location while adhering to legal standards.
- Disputing the Statement of Claim of Divorce (if Contested Divorce)
In cases where the divorce is contested, the Defendant has the opportunity to dispute the claims made in the Statement of Claim for Divorce. They must file a Statement of Defence within 20 days of receiving the original document.
This is especially common if there are disagreements over the terms of the divorce or the details within a separation agreement.
- Complete the Other Paperwork Required
If the divorce remains uncontested after the Statement of Defence is handled, or if there was no dispute to begin with, additional forms and paperwork need to be submitted. These include:
- Sworn Affidavit of Service
- Noting in Default
- Request for Divorce
- Affidavit of Applicant
- Proposed Divorce Judgment
- Original Marriage Certificate
- Any orders or agreements related to your divorce
- Previous Certificates of Divorce, if applicable
For couples with children, this stage will also involve submitting:
- Summary of Child Support Guideline Calculations
- Parenting After Separation Certificate or Exemption Form
- A Divorce Judgment that details arrangements for the children.
- Get the Signed Divorce Judgment
Once all paperwork is submitted and in order, the divorce file is reviewed by a judge. If everything is correct and there are no unresolved issues, the judge will sign the Divorce Judgment.
This signed document is then returned to the clerk, who will mail copies to both the plaintiff and the defendant. The processing time for this step can take up to six weeks.
- Request a Certificate of Divorce
After the Divorce Judgment has been signed, it becomes final 31 days later.
At this point, you are eligible to request a Certificate of Divorce from the courthouse. This certificate marks the official end of your divorce proceedings and legally confirms your status as no longer married.
Consider a Separation Agreement Before You File for Divorce in Alberta
Before filing for divorce, drafting a separation agreement can be beneficial. This document is not legally required but can expedite and reduce the cost of the divorce process by pre-establishing key terms regarding child welfare, property division, and spousal support. It ensures the judge sees that all critical issues have been addressed, facilitating a smoother legal review.
A separation agreement also helps maintain personal control over the terms of your separation, providing a clear, legally binding framework that outlines each party’s rights and responsibilities. This clarity can prevent future misunderstandings and disputes, making it easier to manage changes and enforce terms through the courts if necessary.
Lastly, the agreement serves as a formal record for external parties, such as family members and financial institutions. It can be particularly useful for proving terms to organizations like the Canada Revenue Agency.
Work With an Experienced Divorce Lawyer in Alberta
Working with an experienced divorce lawyer in Calgary, Alberta from Unified LLP can provide the legal support and representation you need during this challenging time.
Our seasoned lawyers are well-versed in all aspects of family law in Alberta, specializing in crafting tailored strategies that protect your interests and aim for the best possible outcomes.
Schedule a consultation to discuss your needs, understand your options and make informed decisions that help you move forward with your life.
