Going through a divorce can be a challenging and emotionally charged process. One common question that arises during this time is, “How long will the divorce process take?” While the duration of a divorce can vary depending on several factors, understanding the general timeline for divorce proceedings can provide individuals with a clearer perspective. In this article, we will explore the key stages involved in a divorce and provide insights into how long each stage typically takes, helping you gain a better understanding of the timeline for divorce.
Stage 1: Separation and Legal Consultation:
The first stage in the process is typically the period of separation. In Canada, the most often relied upon ground for seeking a divorce is for spouses to live separate and apart for at least one year before they can file for divorce. The other two grounds, which do not require waiting for one year, are adultery and cruelty, however, these grounds are rarely relied upon. During this separation period, it is advisable to consult with a family law lawyer who specializes in divorce cases. This initial legal consultation can help you understand your rights, obligations, and options moving forward. It is highly desirable to try to negotiate and finalize a separation agreement before initiating a court application. Each spouse should obtain their own lawyer for this.
Stage 2: Negotiation and Settlement:
Before the divorce application is filed in the family court, the spouses and their respective lawyers can begin negotiations to reach a settlement agreement. This stage involves discussions on the principal issues of parenting (formerly referred to as custody and access), child support, spousal support, division of property, and any other corollary issues. The duration of this stage can vary greatly depending on the complexity of the case and the level of cooperation between the parties. Some couples are able to reach a mutually agreeable settlement through negotiation between counsel, while others may require alternative dispute resolution (ADR) methods like mediation, or collaborative family law. Regardless of the process utilized, two fundamentally important issues to keep in mind are: making full financial disclosure, and obtaining independent legal advice.
Stage 3: Filing the Divorce Application:
Essentially, divorce applications can be divided into two groups: contested ones, and uncontested ones. If, through negotiation, and possibly ADR, a final settlement has not been reached, it may be necessary to have the case brought to court. Once the required separation period has been completed, the next stage is to file a divorce application, including a claim for a divorce, as well as claims for all other issues that have not been settled. In Ottawa/Kanata, the Application is submitted to the Ontario Superior Court of Justice. The Application is issued by the court office, and then served on the responding spouse personally, who must then serve and file an Answer within 30 days (or longer, if the responding spouse resides outside of Ontario). These contested divorce applications can be very expensive, and take, literally, years to complete if they go all the way through to a trial. At least 90% of them do not, but those that do are the nightmare scenarios. In some limited cases a trial is the only way to reach a final determination, by a judge, which is contained in a final divorce judgment. Legal costs are usually awarded to the party who has been the most successful. In cases of divided success, costs may, or may not, be ordered.
The other alternative, outside of court proceedings, in contested matters, is private arbitration, which will be discussed in a separate article.
The second type of divorce application is referred to as an uncontested divorce application. These are instigated following settlement of all issues between the spouses, contained in a comprehensive Separation Agreement, except for a divorce, which must be in a court order. Typically, the Application is issued, served on the responding spouse, and no Answer needs to be done, as in the case of a contested application. After thirty days elapses, the spouse who filed the application, proceeds to the next steps, which are all done administratively, and do not require any personal court attendance. The entire uncontested divorce process usually (used to) take three – four months to complete, however, given the family court’s caseload presently, that duration has basically doubled. A final Divorce Order is issued by the court, followed by a Certificate of Divorce, after thirty days.
An alternative approach in uncontested cases is a joint Divorce Application, but this is done far less often.
There is no exact timeline for obtaining a divorce, but understanding the general stages involved can give you a sense of what to expect. The duration of the process depends on several factors, including the complexity of the case, the level of cooperation between the parties, the court’s caseload, and fundamentally: whether the application is contested, or uncontested. Consulting with an experienced family lawyer can provide you with personalized guidance and help navigate the process more efficiently. Remember that each divorce is unique, and having realistic expectations and open communication can contribute to a smoother and more timely resolution of your divorce and court proceedings.