Divorce – What should you know?

While it may be obvious, the first step in any divorce is separating from your spouse. In most cases, you must be living separate and apart from your spouse for at least one year prior to a obtaining an order for divorce. You may apply to the court for a divorce prior to being separated for a year; however, your divorce will not be granted until you reach the one-year mark. Additionally, in order to apply for a divorce in Nova Scotia, one party must be ordinarily resident in Nova Scotia for at least one year.

There are lots decisions that need to be made when you are separating from your spouse. Where will your children live? Who will make the decisions? Will there be any spousal support? How will your property be divided? While a final divorce order will incorporate these things, it should only be left up to a judge to decide as a last resort. You may want to consider a separation agreement while you are separated from your spouse but have not yet applied for a divorce.

There are two main types of divorce: contested and uncontested divorces. Uncontested divorces occur when both parties agree on all of the issues and you are simply asking the court to grant the divorce. You can apply for an uncontested divorce one of two ways:

  1. Joint Application for Divorce: A Joint Application is an application for divorce where both parties apply for the divorce as co-applicants and agree on all of the issues regarding custody, parenting time, child support, spousal support, and property division.
  2. Divorce by Written Agreement: A Divorce by Written Agreement is appropriate if there is already a separation agreement in place. One party applies for the divorce and must serve the application on the other party after it is filed with the court.

A contested divorce occurs when the parties to a divorce cannot agree on one or more of the issues arising from the separation. The application is called a Petition for Divorce. The spouse who makes the application is the Petitioner and the documents must be personally served on the other spouse who is called the Respondent. The Respondent can file an Answer that provides the details of their position regarding the issues within a specified period of time.
If the divorce is contested there are alternatives to going to a hearing before a judge such as mediation and settlement conferences. Court can be costly and even more emotionally draining a time that is already stressful and emotional.

At Singleton & Associates we have experience with assisting clients through their separation and divorce with satisfactory results. Please contact our office if you are interested in setting up a consultation.

Travelling with your Children
 

Summer’s almost here!  If you are separated or divorced and will be travelling with your children this summer, you may run into difficulty if you do not have the appropriate documentation.  

Before travelling with your children or before you allow your children to travel alone, you should be sure you are aware of any documentary requirements.  You may be asked to produce a birth certificate showing the names of the child’s legal parent(s), any legal documents pertaining to custody, a death certificate if one of the parents is deceased, and/or a parental consent letter.

A parental consent letter is a document that states that the other parent has consented to the travel.  This letter should be notarized by a lawyer.

For further information on passports and any additional documents you may need, we have provided the following links:

http://www.cba.org/CBA/sections_family/newsletters2012/PrintHTML.aspx?DocId=49800

http://travel.gc.ca/travelling/children/consent-letter

A family law lawyer can help you determine what documentation may be required in your particular situation.

Do I Really Need to Hire a Divorce Lawyer?
 

Hiring a divorce lawyer is a bit like brushing your teeth.  You don’t necessary have to, but not doing so can potentially have long lasting negative effects.  In deciding whether you should hire a divorce lawyer, first ask yourself if any of the following statements are true:

  • If parents have joint custody of children then neither parent pays child support;
  • If a spouse leaves the matrimonial home he/she will lose all of their rights to the home;
  • If a parent is an “access parent” they do not have the right to information about a child from schools, doctors, etc.;
  • Common law partners share property in the same way as married people;
  • People are considered “common law” for family law purposes after having lived together for one year;

If you answered “yes” to any of the above, then you would benefit from a consult with a family law lawyer. The above statements are common myths that I often hear from clients who were provided with information from “a friend of a friend”.  They are all inaccurate and misleading. If someone were to enter into a separation agreement believing these myths to be true they may find themselves in a situation where their separation agreement is unenforceable and may find that a court will refuse to grant their divorce until the agreement meets certain legal criteria.  

If you and your spouse cannot agree and you find yourself in the Court system, the court process in real life is very different from what you see on the television.  Most people are unaware of the rules of the courtroom or how to present their case.  Another common myth of unrepresented parties in a court appearance is that they will be allowed to simply appear before the Court and present their case in a speech to the Judge. There are specific rules about what evidence can be accepted by the court, and what evidence cannot be accepted.  

If you attempt to represent yourself in a court proceeding and you make a mistake in filling out your documents, these mistakes can have unintended and sometimes serious consequences and can affect how your case is processed or decided.

It is certainly understandable that given the financial strain that often accompanies a divorce or separation people would want to avoid paying legal fees.  However, you should always consult with or retain a family law lawyer to assist in drafting a separation agreement or to represent you in Court.  Not doing so could potentially cost you more than the legal cost you will incur.

Amendments to the Maintenance and Custody Act
 

The Department of Justice’s Family Law Reform Project has recently completed Phase I of it’s multi-year review of the province’s family laws  resulting in the passing of Bill 39: An Act to Amend the Maintenance and Custody Act with the amendments coming into effect this past February 19, 2013.

The Maintenance and Custody Act deals with child custody and access, as well as child and spousal maintenance in situations where the parties are unmarried or where married parties are seeking to have these matters dealt with by the Court but are not seeking a divorce. 

The amendments made three significant changes to the Act:

1. First, the definition of “dependent child” was amended to remove the age cut-off of children who are over the age of majority but are unable “to withdraw from the charge of the parents or obtain the necessaries of life”.  This is similar language to the definition of a “child of the marriage” under the Divorce Act.  Prior to these amendments the Maintenance and Custody Act precluded children who were twenty-four and over and attending post-secondary school from being considered dependent.

2. Second, the Act was amended to include a list of factors for courts to consider when assessing the best interests of the child, including consideration of whether there has been any “family violence, abuse or intimidation”. Prior to these amendments family violence was only considered in assessing the best interest of the child when it had an effect on the child.  For instance in a situation of spousal abuse, the Court was limited to considering whether the abuse occurred in front of the children or if it in some other way affected the child.  Under the new amendments, the affect that family violence has on the children is one factor of many and will allow the Courts to take a broader view in assessing a situation of family violence on the best interest of the child.

3. Finally, the Act was amended with the addition of the principle that a child should have as much contact with each parent as is consistent with the child’s best interests often referred to as the “maximum contact rule”.

The effect of these amendments is yet to be seen as the new Act makes it way through the Courts and is interpreted by our Judges.  An experienced family law lawyer can help you understand how and if these amendments are applicable to your family’s situation. 

The Engagement Ring
 

I’ve had a few people in my life break off their engagement over the years. The question I often get asked is “Can I get my ring back?” or “Do I have to give the ring back?”.

For most people an engagement ring is a large investment sometimes having a very large price tag. So what does the law say? The answer is found in the legal concepts of conditional gift and unjust enrichment. In plain english the answer appears to be this: if the gift was given on the condition of marriage, and that marriage does not occur, you do not get to keep the gift. This being said, however, whether the gift will be returned to the original owner or its value divided as a family asset would be a fact specific determination made by the Court.

If you have recently separated and have questions about the ownership of any assets, a family law lawyer can help you make those determinations.

Completing Court Forms
 

The Supreme Court of Nova Scotia (Family Division) has specific rules about financial and other disclosure. Attempting to navigate your way through completing these documents can be very overwhelming. When completing your forms, either for the Court or for your lawyer, it is important to remember that when filed with the Court, the contents of your documents form your evidence before the Court. Your lawyer will rely on them to pursue or defend a support or property division claim.

It is also important to remember that when you sign your documents, you are making representations under oath and swearing that the contents in them are true. Do not rush through filling out the forms, and do not guess. Guessing at your entries can have unintended effects on your credibility to the reader, which can ultimately include, most importantly, the Court and the Judge hearing your matter. You should try and include bank statements or other documentary evidence to support as much of your financial and property disclosure as possible. The more documentary evidence you provide, the better the foundation you will build for your case before the Court.

Don’t forget to ask your lawyer for help. Your lawyer and his/her staff have experience at this task and will be able to advise you about what is required and help you through any writer’s block you may encounter.