– By Marlise Foster, Legal Assistant
When we hear the word divorce, many people immediately would think of a long, bitter and emotional battle between two parties. This is not always true. There are many instances where parties are able to part amicably.
Legal offices often get calls from potential clients stating that they want a divorce and that both parties agree on everything. A few questions to the caller quite regularly indicates that even though parties do agree on most aspects of the divorce, there are some areas that will need to be addressed first.
It is appropriate to first look at the definition of uncontested and contested divorces.
An uncontested divorce (also known as a joint divorce, desk order divorce or undefended divorce) means all aspects such as child support, spousal support, ownership of property, etc. have been discussed and agreed upon by both parties.
A contested divorce (also known as a defended divorce) is when both parties agrees about getting a divorce but they cannot agree on some or all of the details regarding the divorce.
An uncontested divorce is much less expensive than a contested divorce because the parties does not need to appear in court before a judge.
Legal requirements that needs to be adhered to when filing for an uncontested divorce are breakdown of the marriage – there is no possibility of reconciliation, no outstanding disputes – both parties agree on everything, and at least one party must be a BC resident. The merits of the proceeding will be decided by a judge.
It is helpful to have a signed Separation Agreement when filing for an uncontested divorce since the terms in the agreement may become the terms of the divorce Order.
To start the proceeding, one party needs to prepare and file in court a Notice of Family Claim. The court will process the Notice of Family Claim and return it to the filing party. A copy of this filed document must be personally served on the other party. Since both parties agrees to all aspects of the divorce, the other party need not file a Response to Family Claim in the court.
After 30 days, the filing party must prepare and file in the court affidavits regarding personal service of the Notice of Family Claim on the other party, Desk Order Divorce, child support and a Certificate of Pleadings. The filing party should also prepare a draft divorce Order to be filed.
When parties agree on everything the only decision left for the judge to make is whether or not the divorce will be granted.
Contested divorces usually has back and forth communication between the parties and /or their lawyers. In many cases, parties cannot agree about some aspects of the divorce such as parenting time and schedules, child and spousal support or how to divide property and debt. In these cases, chambers hearings can be scheduled to get a decision from a judge.
As for an uncontested divorce, one party must file a Notice of Family Claim with the court. The other party must be served with a filed copy and must file a Response to Family Claim and a Counterclaim within 30 days of the day on which the party received the Notice of Family Claim. Once this is done, both parties must file a Financial Statement. The Financial Statement will assist the judge when making a decision on both parties’ ability to pay spousal and/or child support.
The next step is to attend a Judicial Case Conference (JCC). At the JCC the judge will meet with the parties and their lawyers in an informal setting to see if the issues can be settled without the need to go to trial. If no settlement can be reached, litigation of the matter will go to trial where a judge will make the final decision.
There is usually a long waiting time before getting to attend at trial before a judge. During this time parties can attend at chambers hearings to obtain interim orders. These orders may deal with parenting time schedules, child support or spousal support and may later become terms of the final divorce order.
At a chambers hearing only the parties and / or their lawyers meet with a judge to discuss the matter at hand. There can be many chambers hearings before a divorce is granted. Divorce matters are often settled at chambers hearings, with the result that the parties need not attend a trial.
In order for a judge to grant a final divorce order, the parties must have resolved property and debt division issues, child support and custody as well as spousal support.
Things to keep in mind when getting a divorce:
For an uncontested divorce you can hire a lawyer to review your completed materials to ensure everything is in order – usually they will charge a flat rate.
A contested divorce can be very costly. Legal fees are usually billed in 6-minute increments. Lawyers and staff will spend time to determine the client’s legal position, getting information on the relationship history, prepare court documents, etc. Actually talking to the client normally takes up only a fraction of the time spent on a contested divorce proceeding. Legal fees when a lawyer is involved can easily cost a party between $30,000 and $500,000 or more. The more unreasonable and revengeful one or both parties are, the higher the cost of the proceedings will be.
Parents will have to interact with children for as long as they remain children of the marriage as determined by the courts. A functional working relationship between the parties will benefit the children as well as their relationship with each parent. Children pick up on conflict and hostility between parents which could lead to animosity between all involved.
The decision to go ahead with divorce proceedings does not mean it will be over and done with in a short time. It can take several years if a divorce is contested.
If a matter does go to trial, it could take as little as 5 days or as much as 25 days for a judge to hear all arguments and to make a decision.
An uncontested divorce may take several months before a Divorce Order is made and a Divorce Certificate issued.
A remarkably high percentage of Desk Order Divorce applications are rejected by courts because of incompleteness, improper wording in documents, incorrect documents, etc. Hiring a lawyer to review your documents before filing it in court can save you time and money.
Whether your divorce is contested or uncontested, you should at least obtain independent legal advice before agreeing to anything that will affect the rest of your life.