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A divorce is always difficult for everyone involved, especially if there are children. The emotional impact of a failed marriage is unavoidable, even when the separation is amicable. However, when there is a conflict between spouses, which is usually the case, the road to divorce becomes much rougher. The usual result is a contested divorce.
A contested divorce in Ontario is not always a bad thing, but it does draw out the divorce process. If it is possible, try to avoid a contested divorce.
That said, a contested divorce can ensure that both parties get an equitable share of their marital property. The main reasons for a contested divorce is when the parties cannot agree on parenting time, child support, spousal support, and equalization of property, among others. In the event of abuse or infidelity, this will come out in a contested divorce, which may have a significant impact on these corollary issues.
If you are contemplating divorce, you must understand the meaning and implications of a contested divorce. The knowledge can help you prepare for what’s ahead as you move towards the end of your marriage.
What Does a Contested Divorce Mean?
What is a contested divorce? A contested divorce happens when the parties in a divorce dispute one or more issues about the divorce. The most common points of argument are child and spousal support, division of property and assets, and parenting time.
If the spouses embark on contested divorce, both parties must establish their position and opinion on the disputed issues. In most cases, contested divorces go through formal divorce procedures. However, the divorcing couple may also settle their issues outside of court through mediations or negotiations.
Uncontested Divorce vs. Contested Divorce
Generally, uncontested divorces occur when both parties in a marriage agree on all points relevant to their separation. “Uncontested” means that nothing is being opposed, so the divorce proceeds on an unopposed or uncontested basis, thus saving the parties significant legal fees and costs. With no issues to resolve, uncontested divorces go through faster at less cost and with much less stress than contested divorces.
Most uncontested divorce cases are for couples that have not been married for very long, have no children, or have not accumulated property and other assets. An uncontested divorce is also common with couples who signed a prenuptial agreement.
Between the two types of divorce, a contested divorce in Ontario is more common. This is especially true in marriages of long duration, with children, or with substantial accumulated property and assets. That does not mean that being married for a long time in of itself results in a contested divorce; only if there are issues in dispute.
Reasons for Contesting a Divorce
Most cases of divorce originate from some form of incompatibility between spouses. It could be something that has always been there or has developed over time. In either case, divorcing couples would most likely not agree over some important matters.
However, issues in dispute may be literally anything. As long as it causes friction and disagreement between the parties, it becomes a matter that needs resolution in the contested divorce process. Below are the key reasons why the other spouse would contest the divorce.
The need for spousal support is a natural consequence of divorce in many cases. The necessary financial access is seldom brought up in a marriage as spouses typically share expenses from a common fund. However, once a divorce is filed by one of the spouses, spousal support can be a significant issue when the other party does not agree on what the other party wants.
The party asking for spousal support must prove to the Court the loss of significant opportunities while in the marriage. These opportunities may include leaving school to work to support the spouse in pursuing a degree or leaving work to care for children. Alternatively, the judge may approve a request for spousal support if the petitioning spouse suffers from a disability or an impairment that keeps them from gainful employment or must stay at home to care for a disabled child.
The Concealment of Assets
A judge has the task of deciding on the equitable division of property and assets, spousal support, and child support. However, a fair assessment is not possible when one or both spouses conceal assets from each other and, by extension, the court. Unfortunately, this is not an uncommon practice. In a contested divorce, the parties will go through a discovery process of all assets of each party.
The Best Interests of Children
When divorcing parents cannot agree on parenting time and decision-making responsibilities, the parties can opt for a contested divorce to get a ruling from the court. A judge in this situation is an objective third party tasked with determining an arrangement that serves the best interests of any children of the marriage. The judge may consider the following factors in making that determination:
- Age of the child
- Emotional and physical needs of the child
- Financial capacity of the parent to provide for the child
- Past parenting history of each spouse
- Child’s preference
Abuse in the Marriage
Whether physical or psychological, marital abuse is a common reason for divorce and often leads to a contested divorce. The abusive spouse tends to make the process as difficult as possible and, more often than not, deny that abuse has taken place.
Spouse is Unwilling to Compromise
Another reason for a divorce to become contested is when one spouse has unreasonable demands and is unwilling to compromise. The only recourse in this situation to reach a fair divorce settlement for both parties is to have the court resolve the issue.
Benefits of an Uncontested Divorce
Drawbacks of an Uncontested Divorce
Filing for a Divorce
Assuming that you fulfill all the eligibility criteria and requirements for divorce in Canada, the next step is to apply for one in Ontario. Starting the process is as simple as filling out court forms and submitting them to an Ontario courthouse. However, if you reasonably believe that the divorce application will be contested by your spouse, it is wiser to have an experienced divorce lawyer to advise, help, and assist you even prior to the filing for a divorce.
To start the filing of a contested divorce, you need to fill out Form 8: Application. This is different from Form 8A: Application (Divorce), which would be appropriate for an uncontested divorce. Form 8 asks for the following information:
- Family history
- Previous court cases
- Claims by the Applicant
- Facts supporting the application for divorce and claims
Form 8 also includes a Lawyer’s Certificate, although you can file for a divorce without a lawyer. That would be unwise, especially in a contested divorce. In either case, filing Form 8 would be the start of the divorce process.
After filing with the court, you now have to serve your spouse (Respondent) with the application, after which the Respondent has 30 days to serve and file an answer. Failing to comply with these deadlines may result in the court finding for the Applicant in all claims as described in Form 8.
A contested divorce in Ontario begins when the Respondent spouse files a Form 10: Answer. This form allows the Respondent to dispute any of the claims you made as the Applicant spouse in Form 8, ask for a dismissal, or to ask for their own claims in the contested court action.
When filing Form 8 and Form 10 in a contested divorce, both spouses must also include financial statements using Form 13.1: Financial Statement (Property and Support Claims). Form 13.1 would support any claims or disputes that you or your spouse may make before the court. The statements would include information about income, expenses, assets, debts, and so on.
First court date and case conference
After these preliminary steps, the court will set the first court date and arrangements for at least one case conference required in Ontario for contested cases. The case conference is an opportunity for all parties to discuss settlements and determine the disclosure of all relevant information before a judge.
Motions and trial
Motions are filed where the moving party (the one making/filing the motion) asks the Court for temporary decisions on some issues. A trial will then proceed if you and your spouse are unable to settle all disputes.
Benefits of Avoiding a Contested Divorce
|Save time||A contested divorce goes through several complicated steps that can draw out the process. A contested divorce can drag on for longer than 48 months in some cases.|
|Save money||A contested divorce can involve a trial, which is expensive. If spouses can settle their issues outside of court, it would save them a significant amount of money.|
|Save stress||Because a contested divorce can go on for years and costs so much money, it can be very stressful for everyone involved. Avoiding a contested divorce will help you move on with your life and perhaps even stay on good terms with your ex-spouse, which is good for the children.|
Although you may begin your case hoping for an uncontested divorce with your spouse, there is a chance that the divorce process can be a rough one and you and your spouse fail to agree on some essential matters, most commonly, on parental arrangement. It is better that prior to acting, consult a family lawyer first. Contact Gelman & Associates today for more information!
Winning a divorce trial can be as simple as ensuring your narrative is more believable and compelling than your spouse’s. Make sure that any credible facts available in the case align with your narrative, so that the story is believable by the courts
Looking for an Experienced Divorce Lawyer? Contact Gelman & Associates Today.
After separation, the most common hope is to obtain a divorce without a courtroom and at a much lower cost, but this is not always possible.
Even when you initially start your case with the hope of your divorce being uncontested by your spouse, you may find that you and your spouse cannot agree on some issues in the divorce.
Gelman & Associates’ experienced divorce lawyers can discuss with you in much greater detail on how to go about with your divorce.
Contested Divorce FAQs
The Applicant spouse may obtain a divorce in Canada without the consent of the Respondent spouse if the Applicant can prove the breakdown of the marriage. One-year separation, adultery, and mental cruelty are the grounds for divorce in Canada.
Yes, you can separate from your spouse. Separation does not have to lead to divorce. However, if you plan to remarry, you must file for divorce after one year of separation. Also, you may want to consider that if you just leave, your spouse may file for spousal support or child support.
It is advised however that before leaving, you try to have a separation agreement with your spouse.
Each contested divorce case is different, so that the cost can vary widely. However, you can probably expect to pay a lawyer upwards of $7,500. For comparison, an uncontested divorce would cost about $700 in court filing fees. If you retain a lawyer in an uncontested divorce, you may pay a flat fee, typically around $2,000.