Contested divorces are wildly misunderstood. The media has led many people to believe that a divorce is “contested” when one member of the couple doesn’t agree to divorce at all.
In reality, a contested divorce is any divorce where the couple can’t agree to the major issues of the divorce and is struggling to come to some sort of settlement. A contested divorce begins when the spouse who wants the divorce serves paperwork on the defendant spouse. When they do, they’ll outline their initial proposal for a divorce settlement. The defendant’s spouse has the right to answer that claim with a counteroffer, to sign off on it, or to ignore it and let it pass without answering it. If the defendant spouse makes a counter-offer and the plaintiff spouse won’t accept it, a contested divorce begins.
Here’s everything you need to know about contested divorce in Alberta.
What Are The Major Issues Of A Divorce?
The three major issues of divorce are:
- Asset and debt division.
- Maintenance payments (spousal and child support).
- Custody and visitation.
There is plenty of room for argument within each of these arenas. One spouse wants to force the sale of the house and split the proceeds while the other wants to keep the house. One spouse wants 10 years of spousal support while the other thinks 5 years is far more appropriate. Both spouses want sole custody of the children, even though Alberta courts rarely award sole custody to anyone. One spouse thinks the other should take on all the debts.
How Long Does a Contested Divorce Take In Alberta?
A contested divorce usually takes six to eight months to complete. Some take longer, as in 12 to 18 months. Divorces don’t have to take this long: they can happen in one to four months after papers are signed off on and filed, but the very nature of a contested divorce means that it takes more time for the papers to get signed at all.
During this time, lawyers are engaging in a process of discovery and negotiation. The discovery process gives lawyers all the information they need to make settlement offers and to take the case to trial if necessary. The negotiation process attempts to create a settlement either spouse can live with.
Spouses may enter the collaborative divorce process right from the start if they wish. This process says that while they do not agree with the current offers on the table, they are both committed to coming to a fair settlement both parties can live with. Both parties agree that they won’t threaten or pursue litigation.
Spouses may also enter the alternative dispute resolution (ADR) process at any time. In this process, both parties hire a neutral mediator who attempts to bring both parties into an agreement about their divorce settlements.
Spouses may also just continue to make offers and counter-offer until it becomes clear that no agreement will be reached and litigation is inevitable.
What Can I Expect From a Contested Divorce?
The process goes as follows:
- One spouse files a Statement of Claim for Divorce and serves it on the defendant.
- The defendant has 20 days to respond.
- The defendant responds within 20 days and makes a counter-offer.
- The discovery and negotiation process begins.
- 90% of the time, you and your spouse will come to an agreement after several months.
- The lawyers file the final divorce papers.
- The Court reviews the divorce papers. If the settlement is legal it will be approved. If the court has reasons to raise questions about the settlement it will deny the settlement and schedule a hearing. This usually takes one to four months.
- The courts will mail out a Judgement of Divorce.
- The divorce takes effect 31 days after the divorce has been granted. You receive a divorce certificate.
What Is The Cost Of A Contested Divorce?
Contested divorces are the most costly type of divorce. A divorce that gets pushed all the way into litigation could cost up to $40,000.
These costs also include unavoidable costs, like filing fees. They can also include discovery costs, such as hiring a forensic accountant to discover whether either spouse is hiding assets.
Can A Wife Contest A Divorce?
Yes. Any spouse has the right to contest a divorce.
Are There Good Reasons For a Contested Divorce?
As expensive as a contested divorce can be, there are sometimes truly good reasons to fight for the best settlement you can get, or to avoid signing off on an unfair settlement.
One good reason is when you are very certain your spouse is hiding assets. For one thing, this will give you an exceptional advantage in obtaining assets should you be able to prove this malfeasance. For another, divorce has lifelong financial consequences, and there’s rarely any good reason to let your spouse gain some sort of advantage by cheating.
Another reason is if the proposed custody arrangements truly aren’t in the best interests of your children, and you know it. You have to be careful here, as it’s very easy to get emotional. Keep in mind that courts favor custody arrangements that are as close to 50/50 as possible. Joint physical and legal arrangements are more common than ever, and at best you will “win” becoming the primary residential parent. It’s usually in the best interests of the child to start thinking about co-parenting and to understand that your child is going to maintain a relationship with both parents. You should only try to fight for sole custody if your spouse is a true danger to the child.
This brings us to a third reason, which is the relationship was abusive. Obviously, if you were suffering from physical or emotional abuse of any kind then it’s unlikely your spouse is going to offer you a fair settlement. Indeed, these spouses tend to make the process as miserable as possible and attempt to use the divorce itself as a tool for additional abuse.
A fourth reason is the divorce settlements on offer just aren’t fair. If you’ve been the house spouse for thirty years and your spouse with a six-figure income at a business you helped build from the shadows says they’re willing to pay you $500 in maintenance for oh, a year or so, then you have every right to fight for more, and should. Divorce will change everyone’s financial life, but it shouldn’t leave you destitute just because most of your contributions to the relationship came in the form of unpaid labor.
Finally, sometimes a contested divorce is simply unavoidable: you’re being reasonable, and your spouse isn’t. In those instances, all you can do is continue to make the best offers you can while knowing that you’re probably going to have to pursue litigation in the end.
What Are Some Bad Reasons For A Contested Divorce?
Attempting to use a contested divorce to “punish” a spouse for leaving you, for cheating on you, or for other bad behavior during the marriage is usually a losing proposition. The courts don’t really take behavior into account during any part of the proceedings until and unless that behavior impacts the best interests of the children.
Even then, behavior only touches custody arrangements. It doesn’t touch asset division, the division of debts, or even maintenance payments. The fact that your spouse committed adultery might not result in a better divorce settlement for you.
Nor is it a good idea to get extremely fixated on one piece of property that could be easily replaced. It’s usually wiser to think in firm dollars-and-cents terms about the total value of the property, how that property can be divided without destroying that value, and how you can walk out of the divorce with what’s most important to you.
For example, if you’ve built your business from the ground up and want to maintain total control then it might be worthwhile to give up most of your other assets just to keep your spouse from maintaining any hold over that business in the future.
Your lawyer can give you a “best case” and “worst-case” that you’re likely to see from the law in the event that your case goes to court. In general, any fair settlement will fall somewhere between those two poles.
You can usually use that information to determine whether you are being offered a settlement that you can live with. You should ask yourself whether you really want to spend more time and money arguing a particular point before digging your heels in. Often, it’s a lot cheaper and a lot easier to be a little bit flexible.
Why Trust Us?
We have decades of experience handling tough divorce cases. Our team specializes in complex high net worth cases, business owner cases, entrepreneur cases, and farm divorces. We’re tough negotiators and fearless litigators who never stop looking out for your best interests.
We’ll help you fight for a fair divorce settlement. Call (587) 689-3333 to get matched with one of our top-notch divorce lawyers today.