In this blog we will reveal our Top 6 Questions that get asked by separating and divorcing clients.
Question 1: I’m separating, what type of professional should I hire, and when should I hire them?
The first thing I want to address is the cause and effect nature of this question – for many people, they recognize that they’re separating, and they automatically assume they need to hire a lawyer, and need to do it right away.
I want to expand your frame of reference of the types of professionals that they can hire – and this really matters. Your experience going through the journey from together to separated or divorced will be shaped by the type of professional you choose – you can hire a lawyer or you can hire a mediator, and even within the realm of lawyers there’s ones who focus on different negotiation processes – some lawyers focus on using the court process to get resolution, and some lawyers focus on staying out of court.
In the case of my firm, Henka Divorce Law & Mediation, all of the services we offer are out-of-court negotiation processes. So, our services are right for some families and not for others.
The question of “when” to hire that divorce professional is really dependent on the situation. I always recommend that people get in to meet with a divorce professional as soon as possible, even before the separation happens if possible.
For most people, separation and divorce is a foreign world to them, and the sooner that you get professional guidance the more informed and empowered you’ll be, to make the best decisions possible for your family.
There’s situations where it can be helpful to start gathering documents before a separation occurs, or to make a plan to have the most effective transition you can have, or even just to be able to digest what the next chapter of your life will look like, without being under time pressure to make decisions.
Question 2: Do I have to go to court?
I get this question all the time – especially because one of the first things I tell potential new clients is that I have an out-of-court settlement-based practice. They say: well, I don’t want to go to court, so that’s perfect.
There’s 2 reasons why you would need to go to court – one is to get a judge to help you arrive at resolution on certain topics, and the other is to file your paperwork to formalize your separation or divorce.
In the context of whether you need to go to court to get a judge to provide you with your resolution, this can be a tricky question – the issue of need can often depend on your situation, and how willing or able you and your former spouse are, to coming to the negotiation table.
I help all sorts of families in an out-of-court setting – there can be lots of trust or none at all, lots of conflict or generally amicable, like of one another or hate. The commonality amongst my clients who are able to stay out of court is that both spouses are willing to come to the negotiation table to deal with the issues that need to be dealt with, and are willing to continue the negotiations until mutual agreement is reached.
Court may be necessary in situations like: if one spouse is resisting, or is patently unreasonable, or is unilaterally making decisions to the detriment of the family.
Even if one of the spouses wants to stay out of court, court may be the only place where resolution can happen because it’ll need to be a judge who makes the decisions on behalf of the spouses.
Question 3: Is there a difference if I live in Alberta versus Saskatchewan?
Most definitely, yes. For us at our office, it’s always one of the first questions we ask because there’s (1) different procedural rules and (2) different laws that we have to follow depending on the province where you live.
For starters, the procedural rules are different in each province. Married couples who are wanting to get a divorce will need to file their divorce paperwork through the court set up in their province of residence.
Question 2 dealt with whether separating couples need to go to court – in the context of filing the paperwork, you will file paperwork in the court where one of you has lived for at least one year. If neither of you have lived in your province for a full year, then you can’t file your paperwork until that threshold has been met.
Another difference is the laws in your particular province. For topics like parenting, child support, and spousal support, the federal Divorce Act applies to spouses who are married and looking to get divorced. This is means that the wording is technically the same for residents of both Alberta and Saskatchewan. However, the way that the Court applies the rules in each province differs slightly.
And, for those who are unmarried would look to the provincial legislation in each province to determine the rules.
Division of assets and debts is another main topic that gets negotiated in a separation or divorce, and this is under provincial jurisdiction. This means that it does matter whether you live in Alberta or Saskatchewan because the rules for division are different in each province.
Question 4: Am I allowed to move away with my kids?
This is a complicated question. It really depends on the situation, as with most issues relating to separation and divorce. As usual, we’re dealing with various pieces of legislation when answering any of these questions.
Let’s go through what applies to whom. The federal Divorce Act applies to married spouses who are seeking a divorce, and the provincial legislation applies to unmarried spouses or to married spouses not seeking a divorce.
The federal Divorce Act and the Children’s Law Act in Saskatchewan are very similar – March 2021 they both were amended to add in specific wording about changes of residence and relocation.
So, if you fall under either of these pieces of legislation you’ll have to follow the procedures laid out as follows:
- A change of residence is where a parent is moving but the parenting time won’t necessarily need to change. If you fall into this category, it’s usually only notice that needs to be provided to the other parent, you usually don’t need to seek permission for the change of residence
- A relocation is where the move will change the parenting schedule. There’s notice requirements and regulated forms that need to be used
The Family Law Act in Alberta doesn’t have these relocation clauses in its legislation. It’s still the court-made law that defines whether a move will be allowed.
So, if you are wanting to move, at its core in most cases you’ll need to either inform the other parent or get permission from the other parent.
As usual, it’s complicated.
Question 5: What rights do I have to have time with my kids?
I sometimes have parents tell me that the other parent won’t “let” them have time with the kids. At its core, for most separated parents, neither parent is entitled to dictate what the schedule will be for either parent once they are living in two homes. It’s something that needs to be negotiated.
I always tell parents that the sooner they can discuss and agree on the parenting schedule the better – especially before any sort of “tug of war” occurs.
Creating a parenting schedule can be something that’s got both parties’ voices involved in its creation, or it can be something that’s imposed by a judge. My hope for all families is that both parents come to the negotiating table to discuss what works best for the whole family as far as scheduling the kids.
When I help families to discuss parenting schedules, I will look at a number of things – for instance:
- Work schedules and the realities of the parents’ availability
- Kid schedules – school schedule, activities schedule, part-time job schedules
- Holidays that are important to each parent
- And developmental stages of each of the children
All of these factors are important to consider when figuring out a parenting schedule.
Again, such a schedule can be imposed by a judge, or it can be worked out between the parents with the help of a mediator or a settlement-based lawyer.
Question 6: How long do I have to be separated to get a divorce?
To be eligible for a divorce, you need to prove to the Court that there has been a “breakdown of the relationship”. You can show this in one of 3 ways:
- One-year of living separated
- Adultery by the other spouse – and when I say the other spouse, you aren’t eligible to apply for a divorce by saying that you have been adulterous – it has to be your spouse’s adultery
- Mental or physical cruelty – this goes to family violence
For most divorces, it will be the one-year of separation that will be used to prove that there has been a breakdown of the relationship because the negotiations that surround the divorce are likely to take that long to complete in any event.
The exception to that is that if you decide to enter a process like mediation, the negotiations of the separation-related issues usually takes between 2-4 months, and then the rest is the waiting period for the 1-year of separation to become eligible for a 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.
As an educator, Stephanie Dobson is Founder, CEO, and Content Creator of Up A Notch Learning Inc., an e-learning platform to empower separating and divorcing families globally with a collection of positive and constructive resources. Visit our website to learn more.