Joint Divorce, by Consent, or Something Else?
When people in Saskatchewan are wanting to get a divorce, they have different options and they might feel overwhelmed or confused about what they should do. While it’s always important to consult with a family law lawyer about how to approach a divorce in a legally sound way, here is some general information that may be helpful for folks who are uncertain about which direction to take on this journey.
Do you even need a divorce?
A divorce is a legal process that ends a legal marriage. Folks who are not legally married (example: common-law partners, ceremonial marriages), do not have to go through the process of getting divorced. Some folks who are not legally married but were in a romantic and/or domestic partnership, may need to explore other legal options to untangle their relationship, however, they will not need to get a divorce.
Some folks who are legally married also are not concerned about getting a divorce, even though their romantic or domestic partnership is coming to a close. Divorce ends many entitlements married couples enjoy and also changes someone’s legal status, however, some folks make a separation agreement and do not find it necessary to get officially divorced.
A primary reason folks truly require a divorce is because they one day hope to remarry. You cannot marry another person until you are officially divorced.
How should you get divorced?
There are many ways to approach getting divorced. If the situation is tumultuous, it may be concluded that it must go through a court proceeding, wherein one party is the petitioner and the other a respondent. In Saskatchewan, folks are required to use an Early Family Dispute Resolution process. These processes include mediation, arbitration, Collaborative law, parenting coordination, or the Child Support Calculation Service. In unique circumstances, a person may apply for an exemption and not be required to go through an Early Family Dispute Resolution process. If you think you need an exemption, it is important to speak to a Family Law lawyer.
If the situation is tough, but the parties are committed to resolving things peacefully, they may hire a mediator or other professional to assist them in negotiating the terms of their settlement. When they have reached an agreement, they can obtain independent legal advice and sign the agreement. After one year of being separated, they are eligible for divorce. In these situations, they might choose to apply for divorce jointly by way of co-petition. This is optimal for folks who are fully aligned on the terms of their separation, and both want to become divorced. Another option is for one party to be the petitioner, and the other the respondent, and the respondent to sign a consent judgment. This means they both still want a divorce and agree to it, but keeps the process a bit more agile, as with a co-petition it can be a bit clunkier because both parties need to sign everything and stay “in the know”.
At Panko Collaborative Law, when possible, we assist our clients in joint divorce applications or divorce by consent. We believe in peacefully ending marital relationships to preserve well-being and protect the parties’ financial resources. In some situations, this is not possible, but we try bringing peace to all separation and divorce processes we assist with.
Why wouldn’t someone apply jointly for divorce?
If folks are not on the same page, it usually is not possible for them to apply for a divorce through a co-petition.
If one party is difficult to track down or doesn’t respond to requests for a divorce, this is another time that it is not usually possible for a divorce to be through a co-petition.
In some situations, the parties’ lawyers may have legal rationale as to why it would not be appropriate to apply for a divorce through a co-petition.
If you are curious if applying for a divorce jointly is an option in your situation, we encourage you to book a consultation with one of our talented family law lawyers today!
Summary
Not everyone who wants to separate needs or wants to get a divorce. A divorce is a process to change legal marital status and to sever property and financial entitlement. Severing property and financial entitlement can be done by way of a separation agreement instead of or in addition to a divorce. Folks who are not legally married, and want to separate, do not need to get divorced, however, it is often important for them to put together a separation agreement.
How someone chooses to approach the separation and divorce process is dependent on their unique circumstances. It is helpful for folks to seek legal advice from a family law lawyer to ensure they are selecting the correct process options to meet the specifics of their situation and to uphold any personal values they have.
Folks only become eligible for divorce after having been separated for one year. There are some circumstances which may enable them to be eligible for a divorce sooner than one year of separation. If you think you may be eligible for a divorce sooner than one year of separation, book a consultation with a family law lawyer to discuss.
Folks may co-petition the court for a divorce. This is a peaceful and mutually respectful way to seek a divorce because the parties are signing and submitting their divorce application together, in complete agreement.
One party may petition the court for a divorce, and the other party may be a respondent. In this situation, it can still be peaceful and mutually respectful if the other party is informed and if it is done by consent. This option might be optimal over a co-petition in some circumstances. It is helpful to talk to a family law lawyer to determine if it would be better to apply for divorce by way of co-petition or by way of consent.
In situations wherein the parties are not able to agree to apply for divorce together and are not able to divorce by consent, it may still be fairly peaceful. Sometimes this happens if one party is just not responding to the other party’s requests but really does not have any issue with getting divorced. This may be referred to as an uncontested divorce, and a petitioner might note the other party for default – speak to a family law lawyer if you think this might be the situation you are in.
Sometimes folks simply cannot come to a resolution, and they are not in agreement about getting a divorce or the terms related to property division, parenting, or financial support. In these situations, it is helpful to seek the assistance of a dispute resolution professional to try to negotiate.
At Panko Collaborative Law, no matter if parties are completely on the same page or reading totally different books, we work to get people to a peaceful, respectful, and sustainable resolution.