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, we have what’s called “no-fault divorce” to get a divorce which means that you don’t need your spouse’s consent to file for divorce.  You can apply for divorce based on the breakdown of the marriage, usually citing reasons such as separation for one year.

If you’re applying for a divorce on grounds other than separation for one year, such as adultery or mental or physical cruelty, you may still need to prove these grounds, but you don’t need consent from your spouse to proceed.

You will proceed with divorce in one of two ways – contested or uncontested.  Uncontested means that the spouses agree on the terms of the divorce, and then the process is smoother and you may not need to attend court. If you have a contested divorce, that means that you and your spouse odn’t agree to the divorce or dispute the terms of the divorce, and that may require court intervention.

However, in no case do you need your spouse’s consent to proceed with a divorce. 

Myth #2 – Adultery will cost me everything

Although adultery may have an impact on the divorce, it does not automatically mean that you will lost everything. 

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.

For example:

• Spousal support – In some cases, if one spouse’s adultery significanly impacts the financial situation of the other spouse, it may influence the amount of spousal support awarded.  However, it’s not guaranteed, and outcomes can vary based on individual circumstances.  The legislation says that you aren’t going to receive less or pay more just because of the mere fact of there having been adultery.
• Property division – the division of assets and debts is typically based on the principle of fairness rather than punishment for wrongdoing.  Generally, assets acquired during the relationship are divided equally, regardless of marital conduct.
• 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.  It may impact parenting if it can be shown that the conduct affects the child’s well-being.

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

Another myth.

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”