In Ontario, a lawyer is not required to file for divorce. However, obtaining legal advice prior to filing for a divorce may prove to be beneficial, as a lawyer can explain your rights, obligations and make the process smoother overall.
• Uncontested or Joint Divorce
An uncontested divorce is where one spouse files a for divorce and serves the opposing party with their application. In these cases, the opposing party does not file a response. A joint divorce is where both spouses file for divorce together.
These scenarios occur when both spouses are on the same page on all the key issues surrounding their divorce. These issues include child custody, child and spousal support, division of property, debt allocation, and asset distribution.
Prior to going forward with your divorce, a lawyer can advise you on whether your current position is in your best interests. A lawyer can also assist you in drafting and filing the materials.
• Contested Divorce
A contested divorce is one where spouses cannot arrive at an agreement on one or more key issues.
Alternative Dispute Resolution and Separation Agreements
Family law is centered around voluntary resolution and coming to mutual terms with your spouse. Thus, various means of alternative dispute resolution (ADR), such as mediation, arbitration, and collaborative family law are often recommended and common methods for resolving a contested divorce.
Prior to considering a mediator or arbitrator, a lawyer will be helpful to gain an understanding of the law. A lawyer can also help you decided which method of ADR is most appropriate for your circumstances, as well as provide recommendations for professionals and other specifics of your ADR process, for example, deciding between open and closed mediation.
Specifically, for mediation or collaborative family law, once the parties come to a resolution, each party should obtain independent legal advice before signing a separation agreement.
In fact, even in uncontested and joint divorces, a lawyer will be particularly useful in drafting a separation agreement that reflects your position in a way that is compatible with the law on all matters relating to your divorce.
This will ensure that the rights and obligations between parties are well understood, and can also provide an avenue for dispute resolution should either party breach the agreement.
If parties cannot reach a resolution through ADR, or where ADR is not suitable, the parties may be forced to litigate. Litigation requires an understanding of the court process and the law. In these cases, a lawyer is highly recommended, as one will be able to represent you before the court in a comprehensive and compelling matter.