There are so many myths out there about divorce, the divorce process, parenting after divorce, and more. I hear about these every day, and thought I’d take the opportunity to debunk some of these myths!
Myth #1 – I need my spouse’s consent to get a divorce
This is a myth
In Canada, to get a divorce you need to prove to the Court that there’s been a breakdown of the marriage.
You can prove this in one of 3 ways:
- Living separate and apart for one year;
- Mental or physical cruelty by your spouse against you; or
- Adultery by the other spouse.
In no case do you need your spouse’s consent to proceed with a divorce. If one of you wants to end the marriage, then you simply have to prove that one of these elements applies to you, and you will be eligible for a divorce.
Myth #2 – Adultery will cost me everything
Although this may feel true emotionally, this is a legal myth.
I call it myth because the legislation addresses in many ways that adultery does not have an effect on resolution to separation and divorce matters in many ways.
- Spousal support – the legislation says that you aren’t going to receive less or pay more just because of adultery
- Property division – adultery has literally zero impact on how your property will be divided in a separation or divorce. The split will be 50/50 subject to some exceptions, period.
- Parenting – although past conduct may affect a parenting plan, adultery alone won’t stop you from either having time with your children or being a decision-maker
One way that adultery does actually affect your divorce is that it could cause you to be eligible for a divorce sooner than the 1 year of separation.
Myth #3 – If child support isn’t paid, then parenting time can be denied
This is a myth.
Child support and parenting time are not typically linked together. If there’s a document requiring you to send the children to the other parent for time with the children, then you are not able to deny time just because child support has not been paid.
There’s reasons that parenting time may be denied, such as issues relating to safety of the children, but not for child support non-payment.
If you’re on the other side of the situation, and you’re being denied parenting time, that’s equally not a reason to withhold the payment of child support.
I always say that if you have to go to court, it’s best to come with “clean hands”. A judge is more likely to be sympathetic to the parent who has been abiding by what they’re supposed to be doing – either sending children for time with the other parent, or paying child support as scheduled. If you’re both in a stand-off of sorts – parenting time for support – then the court will give you both a slap on the wrist per se.
Myth #4 – The kids get to choose which parent they live with when they are age 12
Under the separation and divorce legislation, kids don’t get to choose where they live until they are no longer under their parents’ care and control as “children”. Typically that will be the age of majority, which in Alberta and Saskatchewan is age 18 for these purposes. The final decision is up to the parents or ultimately a court if the parents can’t agree.
However, as children get to be pre-teens and teenagers, they will have a lot more say in where they live – often they will become part of the parents’ discussions relating to parenting schedules and moving between mom’s house and dad’s house.
I call it having a “voice not a choice”.
There are ways that we can bring the child’s voice into the discussion – for instance, sometimes the parents will hire a psychologist who will provide feedback to the parents, their lawyers, and possibly to the court if necessary. Sometimes the children will be involved directly in a process like mediation where the mediator can meet with them directly with the parents’ permission.
Myth #5 – To get a divorce I need to go to court
On a very technical level – yes, if you want to be legally unmarried, and no longer spouses, the Court will have to stamp your divorce application to cause you to be divorced.
However, I call it a myth because when people ask if they need to “go to court” they usually are asking whether they need to step foot in a courtroom or speak with a Judge directly.
All of the negotiations relating to your separation and divorce issues such as your parenting plan, child support, spousal support, and division of property, can be done outside of the courtroom either with your lawyer or a mediator.
Then, the final resolution will be documented in your separation agreement or your divorce application and the court simply double checks it and signs off on it without needing to see you in-person. It’s called a “desk divorce”.
Henka Divorce Law & Mediation is a Collaborative Law and Family Mediation firm that helps families thrive as they transition to separation, divorce, or cohabitation. Understanding that every journey is different, we guide families through the right legal or mediation process that fits their unique situation.
Our client service is built on three pillars – focusing on the future, nurturing and supporting children, and working together towards well-being. This includes considering everyone’s needs throughout the process. We work closely with families to provide a meaningful and fair resolution, while keeping costs down by staying out of court.
We serve families in Alberta and Saskatchewan, Canada through their separation or divorce by providing in-person and virtual Collaborative Law or Mediation services.
With extensive knowledge in matrimonial law, our founder Stephanie Dobson uses a caring, results-focused approach to help parents navigate a family separation or divorce while they connect with and support their children. Learn more about her approach and credentials.