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How does the reason for divorce affect my divorce in Calgary?

As divorce lawyer in Calgary, clients frequently ask me: How does the reason for my divorce affect my divorce in Calgary?

In essence, there are 2 main ways that the reason for the divorce may affect the divorce:

a) the date that one can apply for a divorce judgment; and

b) the effect the reason for the divorce will have upon any financial issues.

At this time, we should recap the types of reasons for divorce that are accepted by the Courts.

The Divorce Act provides that one of the following must be established before a Court is able to establish that the marriage has broken down:

a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

i) committed adultery, or

ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

As can be seen, if one year separation is relied upon, the parties cannot apply for a divorce judgment until they have been separated for at least one year. However, if adultery, or cruelty is relied upon, provided the other party does not oppose such a claim, there is no time period that has to expire before the parties may apply for a divorce judgment. This does, of course, assume that the parties agree upon everything else.

So the ground that is chosen for divorce may result in the parties being able to apply for a divorce judgment sooner. However, from my experience, it is rare for a party to accept that they have committed adultery, or acted in a cruel way and, if that proves to be the case, the parties may have to proceed to trial and it will likely take the parties more than a year to have their trial.

The other issue is: am I entitled to a larger financial settlement if I claim a specific ground for the divorce? The answer that will apply in the vast majority of cases is "No."

Many clients believe that they are entitled to a larger amount of child support, a larger amount of spousal support and a greater share of the division of matrimonial property if they claim adultery or cruelty, as opposed to claiming separation of a year. Unfortunately for those clients, that is not the case.

While it is not impossible for the reason for the divorce to have an impact upon those financial issues (for example, if the physical cruelty was so severe that the victim was injured to such an extent that they were unable to work again), such situations are, thankfully, relatively rare.

If you have any questions regarding anything that is set out above, or if you would like to schedule a consultation regarding divorce, separation, division of property, custody and access, guardianship and parenting, child support or spousal support, please email me here, or contact me via telephone on 403-538-2105.

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