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A common request among separated spouses is: “I would like an uncontested divorce.”
What does an “uncontested divorce” mean?
While an uncontested divorce is often perceived as one in which the divorce claim itself will not be contested, in fact, an uncontested divorce is one in which there are no additional issues to be resolved prior to or tied up with the granting of the divorce by the Court.
What does this mean for a spouse who just wants a divorce?
Unfortunately, if there are other issues arising from the separation, for example child support or property division, it may be advisable that a Separation Agreement dealing with these issues be entered into first so that the divorce may then be claimed on an uncontested basis.
What are the steps for an uncontested divorce?
If the divorce claim is proceeding on an uncontested basis, once the spouse is served with the Application for divorce and does not respond, the subsequent steps are taken without the participation of the other spouse. These steps include:
- Swearing an Affidavit in support of the divorce claim, which includes a statement as to the parties having been separated for at least one year;
NOTE: If there are dependent children involved, the Court must be satisfied, in accordance with the Divorce Act, that reasonable arrangements have been made for child support. The issue of child support if relevant is also addressed in the Affidavit noted above.
- After the Affidavit is sworn and filed with the Court as part of the spouse’s Motion for divorce, if successful, a divorce Order will issue;
- Thereafter, following a short waiting period, the spouse may apply for a Certificate of Divorce which confirms that no appeal has been taken from the divorce Order and the spouses are free to remarry.
What happens if a Court Application is commenced in which a spouse seeks not only a divorce but other relief as well?
In this case all of the issues are tied with the divorce such that it is then necessary to either (1) resolve the other issues first before pursuing the divorce or (2) obtain an order “splitting” the divorce from these issues, so that the divorce can then proceed on an uncontested basis as described above.
What happens if an Application for an uncontested divorce is commenced while the other issues remain unresolved?
A separated spouse will often do this in the hope of saving time and money, however there is the possibility that the other spouse will respond seeking relief in respect of the unresolved issues. The first spouse would then need to “re-do” their paperwork to deal with these other issues. It is for this reason that it is normally advisable to deal with the other issues first before seeking an uncontested divorce.
What is the typical cost of an uncontested divorce?
Typically lawyers charge a flat fee for uncontested divorces plus disbursements ($1,500 to $2,000 would be average) however if the divorce originally presumed to be uncontested becomes contested, then a client should expect to be charged extra at the lawyer’s hourly rate.
How do you best protect your interests and your children’s interests?
The issues in a marital breakdown other than a divorce are very important. All of the available options should be discussed with a lawyer before any decision is made as to the best way to proceed.
(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact a family lawyer.)