Your Most Common Divorce Questions
When it comes to divorce, you want to feel empowered by your choices. The best way to ensure this happens, is to provide you with all the information necessary to make smart, informed decisions. We’ve compiled a list of the 5 most common questions our lawyers are asked during initial consultations. Although our answers provide insight, each divorce is unique, so please connect with us to get more tailored, strategic advice about your individual situation.
Under the grounds of separation, when am I legally separated?
In Canada, the Divorce Act recognizes three grounds for divorce: separation for at least 1-year, adultery, and mental or physical cruelty. If you are citing separation as grounds for divorce, you must live separated from your partner for one year. However, this does not necessarily mean you cannot live in the same household. In fact, you can still be separated while residing in the same home. There are numerous ways for the courts to determine separation including:
- The parties no longer represent themselves to the world as a couple;
- The parties have limited or no communication;
- The parties no longer socialize together; and
- The parties do not engage in sexual relations with each other.
The Courts also recognizes a 90-day reconciliation period if you and your spouse get back together during the one-year separation. This is intended to allow partners to try and resolve their issues without delaying the divorce, in the case they don’t stay together.
Does the law recognize and compensate me if my spouse cheats?
No. In Alberta the law does not fix blame regardless of factors that may have contributed to the breakdown of the marriage. Although adultery is accepted as grounds for divorce, it will have no effect on division of property, parenting outcomes or financial support. If you do choose to cite adultery as grounds for divorce, the party who committed the act must sign the Affidavit of Adultery, which then becomes part of public record.
Do I lose property rights if I move out of the home?
No. There is no penalty to either spouse if one decides to move out of their shared residence. The family home will still be divided pursuant to the Family Property Act, subject to any exemption claims. The Family Property Act exists to make sure that property is divided fairly between spouses in the event of a divorce.
When is child support and shared parenting payable?
As per the Federal Child Support Guidelines, child support continues to be payable in a shared parenting arrangement. Each parent is obligated to pay child support based upon their guideline income. Typically, parties will use an offset approach, which takes the higher income earners child support obligation less the lower income earners child support obligation, and that amount will be payable by the higher income earner. For example, if the parties have two children in a shared parenting arrangement and partner A is earning 100K and partner B is earning 60K, both parties would be paying support to one another as partner A’s obligation would be $884 while partner Bs obligation would be $505. Thus, partner A’s obligation would be offset by the partner B’s obligation such that partner A would pay partner B $379 per month.
Is it true that children are able to choose which parent to live with at age 12?
Not necessarily. Children don’t have the final decision making power when it comes to deciding their living arrangements. However, they do have a voice. If there is a parenting battle, children can request counsel for themselves and the court will weigh the child’s wishes. The Court will determine custody based on the best interest of the child, however, the Court will give weight to a child’s opinion, so long as it is not being biased by one of the parents. Courts tend to put more weight towards an older child’s opinion, especially older teens.
Disclaimer: The content provided in the blog posts of Jones Divorce & Family Law is general information and should not be considered legal advice. Please contact a lawyer for legal advice tailored to your specific situation. All articles are current as of their original publication date.