01 // What do I need to do to get a divorce?

"I've separated from my spouse but we don't agree on everything. What do I need to do to get a divorce?"

When a marriage ends, the process of getting a divorce can seem overwhelming. Our clients often come to Clarity Family Law asking this question. They are unsure about the process, worried about

the cost, and most often want to avoid a messy court case. We help you to understand your rights and responsibilities during this difficult time, and provide you with a list of options to proceed.

You and your spouse need to have an agreement or a court order that deals with 4 main areas before you can get a court order for divorce:

• Division of property and debt

• Spousal support

• Child support

• Guardianship and parenting arrangements

The process for resolving some or all of these 4 areas in court is called a contested divorce.

Contested Divorce Process

In a contested divorce, one of the spouses starts a family law action in the British Columbia Supreme Court by filing and serving a Notice of Family Claim on the other spouse. The Notice of Family Claim is a court document that includes information about the spouses and their children as well as a detailed listing of how that spouse (called the Claimant) wants to deal with the division of property, spousal support, child support, and parenting arrangements. Once the Claimant has filed and served the Notice of Claim on the other spouse, that spouse (called the Respondent) must file and serve a court document called the Response to Family Claim. The Respondent will indicate in the Response to Family Claim whether they agree or disagree with any of the orders the Claimant has asked for. The Respondent may also file and serve a Counterclaim, which allows them to ask for their orders in any of the 4 areas.

In a contested divorce, sometimes the spouses have agreed upon some of the issues within the 4 main areas. Whatever the spouse's positions are going into the family law action, the spouses should each try to resolve the contested issues outside of court. Both the Divorce Act and the Family Law Act require spouses to try their best to settle these issues. In fact, the vast majority of family law cases settle before trial. Family lawyers also have a duty under the Divorce Act and the Family Law Act to help their clients reach an agreement outside of court.

Settling a Contested Divorce Out of Court

Whether you have already reached an agreement on some issues with your spouse or not, you should ask your lawyer about the options to settle outside of court. One option to settle outside of court is to negotiate with your spouse before starting court action. You can do this with the assistance of lawyers or on your own. If you reach an agreement and put it in writing, that agreement will be proof to the court that you have settled all claims when you apply for a divorce order. Mediation is another tool with a high success rate to reach an agreement on all of the issues. Mediation can be done with or without lawyers.

If you are not able to negotiate or mediate before a court action is started, you can still use these tools at any time before your case goes to trial. Whatever option you choose, it is important to find out your legal rights and obligations before settling. If you or your spouse are unaware of some of the rights and obligations and reach an agreement, or if the agreement is unfair, a court can set aside (cancel) part or all of the agreement and make a different court order.

Options to Reduce Legal Fees in a Contested Divorce

Sometimes spouses are not able to resolve their issues through mediation. In this case, they will proceed to trial to argue their cases in front of the court and a judge will decide for them. Family court trials are very expensive, stressful, and time-consuming. Don't be afraid to ask your lawyer for options to make your legal fees as cost-effective as possible. If you choose to represent yourself in your case, lawyers who offer unbundled services and legal coaching can help you save time and be effective while costing you far less in fees than a full-representation lawyer.

Note: if you are not legally married but have lived common law for over 2 years before separating from your spouse, you may use the same court procedure as a contested divorce. The only difference is that you do not need to ask the court for an order for divorce.

This article is not legal advice. Readers should seek legal advice about their specific circumstances.