Things That Go Wrong With Divorce
Let me share a valuable tip. Money is important! Child custody issues are often money issues, “I won’t give you a divorce” is almost always about money. Marriage is about money, separation is about money, and so is your divorce.
Not doing your homework wastes money. Without certain knowledge you end up listening to the wrong people; you pay the wrong people, and you get bogged down with indecision.
Lies. Sorry I have no polite way of making this point. One spouse will lie, misrepresent and act in bad faith just to save a few bucks.
If you used my separation agreement then you probably saved 3,700 pre-tax dollars in legal fees. So you’re off to a good start.
There are rules to follow.
Every day I receive e-mail from people who say that their spouse will not pay child support. My answer is usually a refined, “They have no choice”.
If you make babies and separate, you are obligated to pay child support based on your income. It does not matter if the receiving parent earns more than you, or has an adult friend helping out. It does not matter if you move to another country. It does not matter if you cry poor. Under the Child Support Guidelines there are exceptions, but don’t count on the undue hardship rule to avoid paying support.
“I asked, but he will not grant me a divorce”. If you have been living apart for more than one year, there is no defence or argument. You do not need permission or approval from your spouse to start your divorce.
The Divorce Act allows divorce based on mental or physical cruelty, and/or adultery by your spouse. With adultery or cruelty as the reason, there is no waiting period. You can apply for divorce right away, even if you are still sharing the same bed.
Two problems: the first is that you need to be a resident in a province for one year before you can start the divorce proceeding. If you leave Ontario and escape to Kamloops, you can not file in BC until you have lived there a year. So, you either wait, or you start the Ontario divorce proceeding before you move. Interestingly, it’s OK to move the day after you file.
The other problem with moving involves the children. You can not move the children any great distance from your spouse without his/her knowledge or consent.
There is no problem with inter-provincial or international divorce if one of you meets the residency rule.
You may share the same address and still be separated as long as you are not living as husband and wife. Please refer to the FAQ page.
Children and Divorce
I see this every day. Couples make their own support payment arrangements – and disregard the Child Support Guidelines. Sure, it is OK to pay or receive an amount which is different than the provincial tables, but if an agency or court is involved then you need to convince the court that your reasoning is valid. The Justice has a duty to follow the guideline table first, then listen to your arguments.
The problem? If you vary from the guidelines you risk having your claim rejected. The least which will happen is that the court will ask for financial statements and other support documents to prove your case.
Another problem? See the side bar from Richer. Often one spouse will misrepresent, either by design or by misinformation.
Custody is often misunderstood. Custody is defined by where the children reside, not by the number of hours of access or visitation. If the children live with you, then you have custody.
- Sole custody means that the children live with you, and you make the sole decisions.
- Joint custody means that the children live with you and you have primary care, and you both share major decisions.
- Shared custody means that the children live with both parents usually on a week-on week-off basis.
- Split custody means that one child resides with you, and one resides with your spouse.
Access and Visitation
“Maximum contact by both parents” is something the courts like to see. OK, let’s say he/she is not paying support money, or you are still angry, or you don’t like the new live-in. Unless there is a harmful risk to the children, you are expected to allow or have fair and reasonable access and visitation.
Things that go wrong with the relationship
“If your former spouse was cheap, never on time and thoughtless before the divorce, he or she will continue to be tight, late and prone to saying stupid things in the divorce….” see related article
“It is common for couples to flirt from dance to dance, each calling their own tune, sometimes in step as if arm in arm, other times crashing apart then rushing back to stomp toes. Often their own”. see related article
It is little wonder that things go wrong.
In the US it’s called alimony, and this too is misunderstood. See my special book about this subject.
Division of Property
If at all possible use a separation agreement to resolve your property issues. I concur that an agreement is not always possible, and one spouse may hold out. Nevertheless, make a serious attempt to have a written agreement. In three provinces, without an agreement, you will be required to attend a mandatory class as part of your divorce proceeding.
There are common rules for splitting the proceeds of the matrimonial home. If in doubt consult a real estate lawyer. In fact, you can not sell or re-mortgage the matrimonial home without both parties’ knowledge. You do not need a separation agreement in order to divorce; it just makes it much easier on everyone.
Things That Go Wrong in Court
It may have taken you twenty years of marriage, difficult times and a two hour drive to find yourself standing at the counter with your divorce papers. Things go wrong here. Trust me on this one.
The person you see is a clerk, and clerks usually have no interest in your story. If your names on the documents match your marriage certificate, and your papers are correct, then things should go smoothly. Court clerks can be very helpful. Or not. Each clerk in each court seems to have their own pet way of doing things and they have the power to make things simmer, or boil. All you can do is smile and bend and follow their suggestions. Typos are an inconvenience, but your case can be delayed, or dismissed if you have not followed the rules.