When a marriage ends in divorce, things can go one of two ways.
In some separations, both parties are looking to end the marriage, and there is really no dispute between them over the issues. These divorces have the potential to move simply and ideally with less fighting between the former couple. However, other divorces can become bitter battles. When former partners cannot agree on certain key matters on their own, like the division of property, support, or issues involving children, then it can become a full-on battle that wages for months or even years.
The above scenarios are known at law as uncontested vs. contested divorces. As you might assume, the level of complexity, along with the levels of stress, anger, and, yes, even legal expense, depends on the positions that everyone takes in the split.
What is an uncontested divorce?
An uncontested divorce is exactly that – one where neither party is putting up a fight. Both agree that the marriage is over and seek the court’s assistance to dissolve the marriage through a simple divorce on an uncontested basis. An uncontested divorce should happen “over the counter,” meaning neither party ever has to physically appear before a judge to get a divorce order.
In many cases, the uncontested divorce is the last step of the family matter. The parties are able to reach an agreement on everything without needing to go to court. This means the parties would have resolved the division of property and any support. It also means that if there are children of the marriage, the parties have agreed on reasonable arrangements for child support, parenting time, and decision-making responsibilities. Once those issues are resolved, then both parties need to be separated for at least one (1) year, with no hope of reconciling the marriage when asking the Court to order the divorce to dissolve the marriage.
Uncontested divorces can be negotiated before they go to the Court for approval, so they do not require motions before a judge or lengthy trials. They can, in fact, be negotiated without lawyers – however, this is rarely advisable. Instead, a family lawyer can help ensure that all of the proper steps are followed and all boxes checked so that the paperwork can be easily approved by the Court without additional negotiations.
What is a contested divorce?
In a contested divorce, the parties, unsurprisingly, disagree on one or several key issues, leading to a dispute over whether the Court should order the divorce. This can mean child support, parenting, spousal support, or division of family property. Disagreement on any of these key issues can lead to a delay in obtaining a divorce. In some cases, a contested divorce happens when one party goes to Court asking for just a “simple divorce,” but the other party disagrees with the Court granting a divorce order until all of the other issues are dealt with. The other party then “contests” the divorce and, in effect, ties the divorce up with issues connected to the divorce, known as “corollary relief.”
Contested divorces are not quick, although the goal is to expedite the process and save costs wherever possible. Litigation can be a great expense that parties will often try to avoid.
A way to potentially avoid a contested divorce is to take a civil and constructive approach to negotiations or dispute resolution early on. This can include bringing in a neutral third-party mediator early in the process to help bridge the gaps between the parties and come to an agreement on some of the key issues.
Ultimately, while a judge may be equipped to help resolve all matters, the costs and delays of getting before the Court can be taxing. The results of a judgment are also unpredictable and may not always work out in your favour. Taking a civil and constructive approach to any negotiations or early dispute resolution can help save time, money, and headaches.
Many parties embarking on a divorce also do not realize how expensive the process can be. While we work to be mindful of client costs wherever possible, prolonged fighting on every single issue can mean legal bills in the tens or even hundreds of thousands of dollars. It is not uncommon for family law litigants to exhaust their legal funds and end up self-representing themselves in the final stages of their proceedings.
How we can help
If your divorce is uncontested, bringing an expert set of eyes into the mix is still important. You don’t always know what you don’t know, and missing a key detail could ultimately leave you vulnerable. A family lawyer can help review the process without adding further delays or complications but can make sure that you’re taking all necessary steps toward a successful resolution.
In a contested divorce, having the right advocate on your side is crucial. Divorce is painful and stressful enough; you need a family lawyer who will advocate for you while still being mindful of your needs.
Property and Spousal Support Claims in Short Marriages and Relationships
When we think of spousal support in Ontario, we usually think of it as a long-term obligation at the end of a long marriage. The law recognizes that the length of a marriage should not be the only factor that determines the duration of support, and other factors such as the age of the former spouses will make a difference in their needs.
If a marriage lasted for over 20 years, or if a marriage was over 5 years but the parties are approaching age 65 (the number of years married plus the recipient’s age is 65 or over), then the obligations for support are ‘indefinite’. What happens, though, when younger people in short-term marriages or relationships decide to part ways?
Here are some of the questions we are asked most frequently about support in short-term relationships:
Who is entitled to spousal support?
If you were married, in a common-law relationship (living together for a period of at least 3 years),or had a child together then you may be entitled to support. This is the first key point – common-law partners are entitled to support whether or not they have a legal marriage ceremony.
The entitlement to support is not an automatic one. Parties seeking support need to demonstrate that they had agreed to a support arrangement as part of their marriage contract (or prenuptial agreement), that they sacrificed their career prospects either for childcare needs or to support their spouse’s career, or that they are now in need and that their former partner can afford to provide support.
The amount of support first depends on whether or not the parties have children together. For couples with dependent children, the formulas are more complicated and take into account child support, tax benefits, etc. For couples without dependent children, the courts will follow the Spousal Support Advisory Guidelines which look at each party’s income and offer a range of what support might look like.
What happens at the end of a short marriage or relationship?
The formula above makes sense if the parties were married or in a common law relationship for most of their adult lives and had made the joint decision that one would stay home with the kids while the other pursued a professional career, or if one supported the other’s business development by purposely working a low-salaried administrative role in their business.
In those cases, the party seeking support will have an easier time justifying their income disparity. For parties only married or in a common law relationship for a handful of years though, especially ones without children, that support can be harder to justify.
The parties may have been earning different amounts at the start of the relationship, and they may still be at the end of the relationship, but the relationship is unlikely the cause of that discrepancy. There is no law that says that one person cannot be a doctor while their partner works at a coffee shop, but both individuals have made their own career choices.
Simply put, these marriages and relationships are unlikely candidates for spousal support. If the disparity in their income is not a direct result of the short marriage, it would be unlikely for a lower-earning party to be able to prove that they are entitled to support from their former spouse.
Of course, the situation changes if those parties have a child during that short marriage or relationship. Child support becomes an additional factor, as does the age of the youngest child at the time of the split. This may mean that support is payable for a longer period depending on the circumstances of the parties.
How is property divided in short-term marriages?
Traditionally property at the end of a marriage is divided through an equalization payment. The parties both calculate their net family property at the end of the marriage (their assets minus their debts as the date of separation, minus the same formula at the date they married except for the matrimonial home), and the party with the higher net property pays the other party an equalization payment.
This generally works well for marriages over 5 years, where the law provides couples and courts some certainty of how to make the situation more equitable. Yet the Ontario Family Law Act allows for an unequal division of property for marriages where the parties cohabited for less than 5 years. Courts have ruled that in marriages where the parties cohabited for under 5 years, a former spouse should not necessarily be rewarded for an unbalanced effort.
Courts have ruled that they have the discretion under the Family Law Act to make unequal divisions of property in short-term marriages, such as the treatment of the matrimonial home. If one spouse owns the home before marriage, and the other spouse puts no money into maintenance or improvements during the relationship, and does not improve the couple’s financial position, they are unlikely to receive half the value of the home (as a long-term spouse might).
Final Thoughts
While past cases offer some legal guidance as to how a particular situation might be treated, it is important to remember that every situation, just like every marriage, is different. Some short marriages or relationships might generate a support claim based on their circumstances, and others may not.
For those reasons it is important not to make any assumptions as to what you may or may not be owed. A family lawyer will work with you to review your individual situation and that of your former partner and can give you a better idea based on the facts of how things might resolve, and where you may (or may not) have a potential claim for support.