Divorce Myths You Need to Know About

If you are considering getting a divorce and trying to learn about the process this article is for you.
You may be getting advice from friends, family members, your hairstylist, or someone at the gym. There’s a pretty good likelihood that some or all of what they tell you about the divorce process is incomplete.


Incorrect information causes good people to make bad decisions or take actions that may wind up hurting themselves and their children.

It is so important to speak with an experienced divorce lawyer as soon as possible if divorce is contemplated. Your divorce lawyer can tell you the truth about how divorce works and bust the many myths about divorce.

Here are some of those myths that are widely believed but simply not true:

 

  • Access can be denied if my ex doesn’t pay child support. There is a process through the Maintenance Enforcement Program for enforcing child support obligations. Self-help by threatening or denying a parent visitation with their child is not one of them. Parenting time and child support is not interrelated
  • Adultery means you give up everything. An extra marital relationship does not automatically mean that you’ll lose your kids, your home, your assets, and your rights. Canada is a “No Fault” divorce jurisdiction. This means that adultery will not mean that you are penalised in the Divorce. But be aware that disposing of martial assets can be a factor that leads to an uneven distribution of the marital assets if a Court hears about it.
  • Divorce can be denied. When you file for divorce, you are actually asking the judge to grant you a divorce. If you want a divorce, and one year has passed since you cohabited, you will get a divorce. It is also possible for a Divorce to be granted before all the financial, custody and visitation issues have been fully resolved.
  • Mothers automatically get the kids. While there certainly seems to be a presumption in favor of mothers, the law has evolved along with changes in society to reflect that both fathers and mothers can be parents after the adults separate. Decisions about custody and parenting will be made based on what is in the best interests of the child, and that depends on circumstances and characteristics that have nothing to do with gender.
  • You must have a lawyer. You can represent yourself in your divorce. Should you? Well, that is a different question. Even if you do decide to represent yourself, you would be well advised to speak with a lawyer who can guide you around the many questions and hurdles you will encounter. This is called a ‘limited retainer’ and is well worth discussing with a lawyer of your choice.
  • You can avoid paying child support. Child support obligations and amounts in Canada are established by law. If you are married and getting a divorce this is outlined in the Divorce Act. If you are living ‘common law’ your obligations are laid out in Provincial legislation – which essentially mirrors the Divorce Act provisions. If you have a minor child and you are not the Residential parent, you will pay child support. If you fail to comply with a child support order, both your spouse and the Maintenance Enforcement program may take aggressive steps to enforce those orders and obtain the support owed.
  • Children get to pick who they live with. The courts should not allow children to make adult decisions. Parenting is an adult decision. If a child has expressed a preference as to which parent, they would like to live with that may be one of the many factors guiding the parenting plan. However, Courts are not required to follow a child’s choice and should make decisions based on what is in the best interests of the child.
  • Divorce always leads to battles. Divorce can often be acrimonious and full of hostility, blame, and finger-pointing – if that is what you choose. But it doesn’t have to be. Mediation, Collaborative law (lawyers who are trained and focused on resolving conflicts as opposed to starting or escalating them) can help make your divorce a process of negotiation and agreement rather than argument.
  • Equitable distribution results in equal division. Property division in a Alberta divorce is governed by principles of “equitable distribution.” What is “equitable” in a given divorce is not necessarily the equal division of assets. Property can be divided in an unequal manner based on the facts in a case or agreement between the spouses. Dividing the assets and liabilities 50/50 is a starting point and not necessarily the result.
  • Women can always count on getting Spousal support. Decisions about spousal support, as with parenting decisions, should not be based on outdated assumptions and should reflect the fact that women are capable of earning an income after a relationship breaks down. Given that women are often the primary care giver for children and have put their career advancement ‘on the back burner’ in order to bring up the children they often do get, and deserve, some support. Decisions about spousal support should be based on the economic realities of the relationship breakdown and the spouses’ post separation roles and abilities to earn an income, regardless of their gender. Canadian Court have adopted Spousal Support guidelines to help Judges make these decisions while also requiring them to take account of the factors in the Divorce Act that define how and why spousal support will be ordered.
  • Most Divorces Go to Court. While you have to file papers with the court in order to get a divorce, that doesn’t mean that there will be a trial, or that you or your children will have to testify in court, or that there needs to be lengthy and expensive court battles. If the parties can reach agreement on all issues, the divorce could be granted by paper work alone. Many adults in Canada are capable of resolving the issues without a trial and without the need for the parties to step into a courtroom.

The Art & Science of Dispute Resolution

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