Divorce and the Law on Getting Divorced: Difference between revisions

Jump to navigation Jump to search
m
Line 96: Line 96:
==The do-it-yourself divorce==
==The do-it-yourself divorce==


The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without every having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.
The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.


You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.
You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.
Line 105: Line 105:
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.


In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support or the division of assets.
In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.


Most court proceedings go like this: the Claimant files a Notice of Family Claim and serves it on the Respondent; the Respondent then files a Response to Family Claim and sometimes a Counterclaim. If the Respondent fails to file a Response to Family Claim, the Claimant's court proceeding is said to be ''uncontested'', meaning that the Respondent is assumed to either agree with the relief sought by the Claimant or to have chosen not to defend the claim. In such circumstances, the Claimant is free to seek a ''default judgment'' against the Respondent.
Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.


A desk order divorce application is essentially an application for a default judgment, whether the Claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].
A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].


There are two types of desk order divorce actions:
There are two types of desk order divorce actions:
Line 120: Line 120:
*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.  
*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.  
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the Claimant and Respondent. In a joint application, the spouses are called Claimant 1 and Claimant 2.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.


Line 133: Line 133:
'''Step Two'''
'''Step Two'''


<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim, the three copies and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>
<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>


'''Step Three'''
'''Step Three'''


<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself, you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>
<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>


'''Step Four'''
'''Step Four'''


<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What Happens if a Response or Counterclaim are Filed?" at the end of this page.</blockquote>
<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>


'''Step Five'''
'''Step Five'''
Line 157: Line 157:
'''Step Eight'''
'''Step Eight'''


<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take 4 to 8 weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>
<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>


Once you've got your entered divorce order and 31 days have passed, you are officially divorced and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:
Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:


'''Step Nine'''
'''Step Nine'''
Line 171: Line 171:
===The joint divorce application===
===The joint divorce application===


The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about 4 to 8 weeks in total.
The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.


These are the main differences between the joint application process and the sole application process:
These are the main differences between the joint application process and the sole application process:


*The parties are known as Claimant 1 and Claimant 2.
*The parties are known as claimant 1 and claimant 2.
*A special form Notice of Family Claim is required.
*A special form Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*Both parties sign the Notice of Family Claim.
Line 182: Line 182:
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.


If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What Happens if a Response or Counterclaim are Filed?" at the end of this page.
If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a Response or Counterclaim are filed?" at the end of this section.


These instructions are for the joint divorce application process.  
These instructions are for the joint divorce application process.  
Line 188: Line 188:
'''Step One'''
'''Step One'''


<blockquote>Prepare a Joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application, prepare your blank Registrar's Certificate, prepare and complete your Requisition to apply for the divorce order, and prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>
<blockquote>Prepare a Joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>


'''Step Two'''
'''Step Two'''


<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form which will be available at the family and divorce counter. File all of these materials (except the unexecuted Affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>
<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your Joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>


'''Step Three'''
'''Step Three'''


<blockquote>While you're at the registry counter, execute the remaining Affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>
<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>


'''Step Four'''
'''Step Four'''


<blockquote>Once you've filed your application, wait 4 weeks.</blockquote>
<blockquote>Once you've filed your application, wait four weeks.</blockquote>


'''Step Five'''
'''Step Five'''


<blockquote>Once 4 weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take 4 to 8 weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>
<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>


Once you've got your entered divorce order and 31 days have passed, you are officially divorced and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:
Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:


'''Step Six'''
'''Step Six'''
Line 216: Line 216:
<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>
<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>


With the exception of the special forms of Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called Claimant and Respondent, they're called Claimant 1 and Claimant 2.
With the exception of the special forms of Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.


===Free services===
===Free services===
Line 222: Line 222:
The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.
The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.


The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual which has samples of the different clauses you may need to complete your court forms. This book will be available at your local courthouse library.
The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual, which has samples of the different clauses you may need to complete your court forms. This book will be available at your local courthouse library.


===Services that are not free===
===Services that are not free===
Line 228: Line 228:
====Lawyers====
====Lawyers====


You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications with the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.
You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.


Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.
Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.
Line 242: Line 242:
*http://www.britishcolumbiadivorce.ca
*http://www.britishcolumbiadivorce.ca


If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service which offers the forms required for a divorce in British Columbia!
If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "desk order divorce BC" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!


===What happens if a response or counterclaim are filed?===
===What happens if a response or counterclaim are filed?===
Line 258: Line 258:
* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
END HIDDEN--->
END HIDDEN--->
==Page resources and links==
==Page resources and links==


2,443

edits

Navigation menu