June 16, 2020 | Divorce

Contemplating divorce – a few things you need to know

Divorce is a tough decision that should not be taken lightly. Many clients who come to our office are still processing their emotions and are often uncertain if they are truly ready to take the next step and file for divorce. Here are some questions you might want to think about while contemplating divorce:

1. One thing we urge people to do when contemplating divorce is to take a good look at their relationship. Can your relationship be salvaged through couple’s therapy or is it too foregone? Is there any way for you to find your way back to one another or is divorce truly the best solution?

2. Another thing people should be aware of is that it is important to understand the divorce process and the different steps it will entail. We encourage people to consult the best family lawyer in Montreal who will be able to go over the process with you, who can explain to you the chances of achieving certain goals, who can discuss how divorce impacts your property and finances, etc.

3. If you have decided that divorce is the best option, you should be made aware of the option to work amicably together through mediation if possible.

4. Parents should always be thinking about what the best situation is for their children and how to support them and make their lives as normal as possible throughout a divorce. You can read our blog article on Co-parenting: It’s all about give and take for more information.

5. Confide in people that you trust to help you get through this difficult time. It is always important to have a support system that can be there for you during the emotional hurdles of divorce.

Read More: Divorce in Quebec: A Step by Step Process

Other legal questions you might want to think about are: 

1. What jurisdiction do I fall under? (Were we married in Quebec? Do both spouses live in Quebec? For how long?)

In accordance with Article 3 of the Divorce Act, either spouse has a right to institute divorce proceedings if they are residing in the province of Quebec for at least one year immediately preceding the commencement of the Divorce proceedings.

2. Do I meet the requirements/grounds of to be able to receive a judgment in divorce?

There are 3 grounds for divorce in Quebec:

1. The spouses must have lived separated for one year, or separated for one year and living separated under the same roof for one year;

2. The spouse in which you file against committed adultery;

3. The spouse in which you file against committed physical and/or mental cruelty.

We often hear the misconception that you cannot file for divorce before the one year of separation has lapsed. You can file for divorce even if the one year has not elapsed but the final divorce judgment will only be rendered after that one year of separation. However, if the grounds of divorce are adultery or physical/mental cruelty, you do not have to be separation for one year before obtaining a divorce judgment.

4. Do I have a marriage contract? What does the division of matrimonial property look like in Quebec?

Unless you have a marriage contract or you married outside of Quebec and Quebec was not your first common domicile (first place where you lived together), spouses married in the province of Quebec are subject to the rules of Partnership of Acquests. However, the rules of the Family Patrimony apply to all couples living in Quebec despite where they married or the location of their first common domicile.

The Family patrimony is partitioned 50/50. There are some exceptions, which are deductions and exclusion, and in particular circumstances, it is possible to ask for an unequal partition. You can read our blog article on Family Patrimony for more information.

5. How does the custody of my children work?

As of now, we do not have legislation in Quebec that has a standard for custody. One of the principles that is used is “the status quo” which means that judges will often lean towards maintaining the stability of the children, and keeping their routine that they  have grown accustomed to. There are obviously exceptions to this rule, there has been serious consideration for legislators to move towards shared custody as a simple presumption as the default custody arrangement and the parties will in fact have the burden to prove why there should not be shared custody in that particular instance. However at the moment that is not the case.

In Quebec the courts will consider the child’s wishes as of the age of 12 if they deem them sufficiently mature to make this type of decision. This is not a determining factor. It is one of many factors to determine what is in the child’s best interest. In circumstances where the parents do not agree to the custody arrangement of the children and the child is not old enough to be able to express his wishes and for children under the age of 12, the parents can hire a psychologist to do a psychosocial expertise to determine what custody arrangement is in the child’s best interest. During the evaluation, the psychologist determine the parental capacity of the parent and will evaluate the child with each parent separately and meet with both parents alone. Once the report is complete, the judge decides what weight to give the report, as they are not bound by it.

A judge can decide to render a custody order that is different from the report and they have the discretion to do so based on different testimonies or other evidence that is presented in the court record or if they feel that the report is biased.

Custody can either be joint custody or sole custody.

Sole custody can be exercised with or without visitation rights for the other parent.

Joint custody is when a child spends anywhere between 40% and 60% of the time with each parent which is between 146 and 219 days a year. In order for joint custody to work, it must be in the best interests of the child and both parents must be able to take care of the child, give the child stability, communicate without arguing and live not too far from eachother.

Sole custody is when a child spends more than 60% of the time with one parent only, this is equivalent to more than 219 days a year.

A judge may also decide to give visitation rights to the other parent, which allows the other parent to have contact with the child, regardless of whether or not that parent has custody.

If you have further questions and are contemplating divorce, please do not hesitate to contact our professional divorce lawyer in Montreal.