Calgary Familiy DIVORCE Lawyers Questions and Answers - Osuji and Smith Lawyers

Over 41 Years of Experience in Finding Solutions for Families by our Family lawyers in Calgary

Divorce Questions and Answers

When can I file for a divorce?

In order to file for divorce, you can either be separated for at least a year or unless there is physical or mental cruelty or adultery.

How do I get a divorce if I can’t find my spouse?

If you cannot find your spouse, you can request permission from the court to publish a notice of the divorce in the newspaper or post a notice in the courthouse. This is called a Motion to Serve by Publication or Posting.

I was married outside Canada / Alberta can I still file a divorce?

You can get a Canadian divorce if you were married in a different country, provided certain prerequisites are met. The reason is that when it comes to divorce, it does not matter where you were married. What matters is where you live when the divorce proceedings are commenced. You can file for divorce in Alberta if you or your partner have lived in Alberta for 1 year.

What is a divorce going to cost you in ALBERTA?

It’s the most frequent question people ask about divorce. We are talking about legal costs here. Though it is not easy to pinpoint the actual price, we can give you a gross idea of average divorce cost in Alberta.

- Uncontested divorce would cost you $1,740.
- Contested divorce would cost $23,730.
- The separation agreement would $2,500.
- Child support and custody $15,950.

The highest reported contested divorce cost in Alberta is $150,000. The main issue of the divorce cost is who is going to bear the legal fee. The court may order the losing party to pay the legal costs of divorce.

However, the result of a court trial in family law is often mixed. Suppose one party wins the custody of children and other party wins on the matter of the amount of support. Is this case, the court may order either party to pay the legal costs as no party emerges as the winner.

What documents and information need to provide for divorce?

Paperwork may vary for each divorce case in Alberta based on the circumstances of the case. For instance, the form is different for contested divorce and uncontested divorce. If there are children, then you need to handle extra paperwork. Whatever the nature or situation of your divorce, these are some standard guidelines for everyone.

- Your recent years of tax returns.
- Bank account and credit card statement.
- Documents of mortgage payments.
- Property assessment documents.
- A complete list of your property.
- Financial investment documents.
- Insurance policies.
- Pension plans.

Child Support Questions and Answers

How is child support calculation done?

Alberta child support is calculated using the Federal Child Support Guidelines and gross parental income. If children live with only one of the parents, only the income of the paying parent is taken into consideration. If the children live with each parent approximately the same amount of time, child support is calculated for each parent separately and the amounts are set-off against each other. The result is that only the higher earning spouse pays the child support.

What happens when my ex-partner is not paying the child support?

The Maintenance Enforcement Act, RSA 2000, cM-1 permits Maintenance Enforcement Program (MEP) to collect payment directly from a payor in the amount set out in the order.

If a person supposed to pay support does not make payments to MEP on time, there are a number of sanctions and enforcement measures available to the MEP. For example, late or missed payments will accumulate arrears with accrued interest. This interest is also enforceable by MEP. MEP has the authority to garnish wages, remove funds from bank accounts, and even seize and sell assets to recover the child support or spousal support owed.

If MEP is unable to collect the support funds through garnishees it can resort to more intrusive sanctions. Such sanctions may include a report to the credit bureau, suspending the payor’s vehicle registration, drivers’ license, passport or hunting license.
In some circumstances, MEP may request that the payor prepare a Statement of Finances. This is a form that sets out all the available income and assets available to the person who is supposed to pay support. If a payor fails to complete and return the Statement of Finances, the payor may have to attend court for a default hearing and testify under oath. If they do not attend the default hearing, MEP has the authority under the Act to apply for a warrant for the payor’s arrest.

What is child support meant to cover?

The support amounts are intended to cover not only the direct costs for the children, but also the indirect costs, such as housing and transportation.

What if I have a child support order how do I change it?

You or your partner may need to change your child support order because of changes to your situation. If your court order does not say what should happen if there are changes to your situation, you and your partner can agree to change your court order. If you can’t agree, you can get help from a family law professional or go to court and ask a judge to decide.

Spousal Support Questions and Answers

When do I stop paying spousal support?

For payment obligations to terminate, the paying spouse must obtain court approval. A paying spouse who wants payments to terminate files what is known as a petition for termination of spousal support with the court. The petition is a formal request that the court terminate the spousal support order.

My ex-spouse lives in another province and I want to change spousal support payments – what do I do?

The Divorce Act allows parties who are divorced and live in different provinces to make a special kind of application to vary (change) a support order, without having to travel to the other province to make the application.

This application is called a ‘provisional’ variation application. There is a special process involved with these applications.

What qualifies me to collect spousal support from my ex-partner?

In most cases, only persons who have been involved in a marriage of a “longer duration” (usually over 5 years) are qualified for spousal support. Also, the court will take into account several factors when making the support determination, including: The earning capacity of each spouse.

Matrimonial / Family Property Questions and Answers

What constitutes family property?

Family property is the property that you come to own during a marriage or adult interdependent relationship. Family property includes all assets and debts. Assets include real estate, vehicles, bank accounts, investment, insurance policies, pensions, business interest, valuables collections and furniture. Debts include mortgage, lines of credit, car loans, other loans, overdraft, credit cards and lease payments.

What happens if my spouse and I do not agree on the division of our matrimonial / family property?

If both spouses cannot agree on how to divide the matrimonial assets or a specific matrimonial asset, the court shall make the final order for them under the Matrimonial Property Act.

What if I do not want the matrimonial / family property to be sold and my spouse wants it sold what can I do?

If a spouse does not want the family property to be sold because the spouse wants to acquire the family property, then the spouse keeping the family property must be able to pay the other spouse any equalization payment owing and also qualify to take over the mortgage and any lines of credit associated with the property.

Can my spouse sell the matrimonial / family property without my consent?

In Alberta, the Dower Act prohibits a married person from disposing of a homestead without consent of the non-title spouse. A disposition includes a transfer, a mortgage, and a lease over three years.

Hoe does the property division work in Alberta divorce?

Property division is one of the biggest concerns in divorce. The property doesn’t only mean house, land, and bank account. It’s your stocks, deposits, bonds, insurance, recreational property, pensions, etc. Before getting a divorce, you and your former partner have to go through all of your assets.

According to Alberta family law, there are three types of property:

- Matrimonial property
- Exempt property
- Increase in value of the exempt property

Exempt property is the property that you own before your marriage, or you receive as a gift or inheritance from a third party during your wedding. These types of property are exempt from division.

Matrimonial property is the property you acquired during your marriage. This property gets evenly distributed between two partners regardless of who earned what.

The last category is an increase in the value of the exempt property. While the property you have before your marriage is exempt from division, its increased value gets divided evenly. For example, you own a painting before the wedding that was worth $2000. When you get divorced, its value rises to $4000. Now, the increased $2000 will subject to equitable division.

Parenting Questions and Answers

What if my ex-partner keeps making it difficult for me to have access to my kids?

You can take your ex-partner to court to enforce the parenting order. If you can prove that he or she is intentionally withholding the children from you, the court will take action to enforce the court orders. Keep track of all the missed visits that was occasioned by your ex-partner’s intentions and make notes with as much detail as possible. For example, record the date, time, and details of each time you were not allowed to see your child.

Can my ex-partner and I mutually agree on parenting without going to court?

Parenting can be agreed outside of the courtroom by mutual agreement between the parties involved, and sometimes a neutral third party. A reasonable parenting agreement arrived at between the parties in a mature and open manner will probably be acceptable to the court.

At what age can my child decide where he or she wants to live?

If the child is under 12 years of age, shifting to live with the other parent might be a little hard but not impossible if they provide legitimate reasons. When the child is 14 years of age or over, it becomes an offense for anybody to compel them.

How do child custody and child visitation rights work in Alberta?

Studies show that children suffer the most from a divorce. So, children’s custody and support priority should be paramount. Divorce is often the result of abuse, addiction, and absence. These things need to be considered for the welfare of children.

If there is evidence of abuse or addiction, you need to seek for the solution to the court.

These are the initiate you should take regarding the child custody and child visitation rights.

- Apply for a consent order - If you and your former partner get to a parenting agreement, you may apply to make these terms into a consent order.
- Apply for a parenting order - It needs to fix the amount of time you could spend with your children.
- Apply for a contact order - This might be necessary if the court doesn’t approve your guardianship.
- Apply for a custody and access order - It will determine which partner will be the guardian of the children and has the right to visit them.

Besides these, you can also apply for the change of these orders to the court.

Cohabitation Questions And Answers

My boyfriend and I have been living together and we do not intend to get married what do you advice we do to protect our relationship?

To fully protect your rights, you should consider drafting the necessary documents. For example, a will, an enduring power of attorney, personal directives and a cohabitation agreement.

What happens to my property after cohabitation has ended with my partner?

The property belongs to you if you exclusively paid for it. to the person who paid for it. Any property you or your partner purchased belongs solely to that person. Your partner has no legal right to the property purchased by you just because you have lived together for a period of time.

However, if your partner as contributed to your property, either directly or indirectly, your partner may have rights. A direct contribution would include, but is not limited to paying for the mortgage, utilities or renovations. An example of indirect contribution would include, but is not limited to childcare, maintaining the household or decorating the household.

I have been cohabiting with my partner and we had children what are my rights towards our children?

If a child is born, the mother is considered the sole guardian and custodial parent of the child if the father does not acknowledge himself as a parent and does not demonstrate an intention to take on the responsibilities of a guardian within one year of either becoming aware of the pregnancy or becoming aware of the birth of the child, whichever is earlier.

Otherwise, the father may apply for guardianship and parenting time with the child.

Prenuptials Questions And Answers

When should I consider having a prenuptial agreement?

A prenuptial agreement is entered into before marriage, but does not become enforceable until after the marriage has taken place. It can deal with property owned jointly or by either spouse separately.

How long does a Prenuptial agreement last?

A prenup is a contractual agreement, and like most contracts, the lifespan of the agreement will depend on the specific stipulations included. Typically, a couple’s prenuptial agreement will last for the lifetime of the marriage.

In some cases, couples include a “sunset” clause. This is a provision in the agreement that stipulates a preset termination of the prenup after a fixed period. For example, you can set the prenuptial agreement to last for 5 years before it automatically expires.

If there is no sunset clause or specific stipulation regarding how long a prenup should last, its lifespan is indefinite.

Both sides may wish for their prenup to end after a certain number of years or want the prenup to last indefinitely. The choice is completely personal and unique to each couple.

When can I decide to cancel or withdraw from my prenuptial agreement?

A prenuptial agreement can be changed or canceled, provided it is mutually agreed by both parties. A single partner cannot change or cancel the prenuptial agreement by themselves. They must have the agreement and signature of the other party.

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Over 41 Years of Experience in Finding Solutions for Families by our Family lawyers Calgary

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Osuji & Smith Lawyers provide results-driven legal service in all areas of family law. Our clients come to us with family law issues ranging from uncontested divorces to complex issues of child access, custody and support orders and matrimonial property division. Our professional advice and guidance have helped many families solve their concerns over division of property. We also provide independent legal advice and reviews of various agreements. We have been proudly serving clients in Calgary, Airdrie, Chestermere, Cochrane, Lethbridge, High River, Edmonton and Red Deer in Alberta for over 41 years.

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…Osuji & Smith has just won the 2021 Three Best Rated for Best Rated Employment Lawyers in Calgary. This is our fifth win having won it in 2017, 2018, 2019, and 2020. We have also won the 2021 Three Best Rated for Best Rated Business Lawyers in Calgary for 2021. This is our third win having won it in 2019 and 2020. Osuji & Smith has also won the Three Best Rated for Best Rated Divorce, Civil Litigation, and Estate Planning Lawyers in Calgary. We have also won the 2021 Top Choice Award for Business Services in Calgary and the Hope Awards, Aspen, among other awards.
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