At Spunt & Carin , we are often asked questions such as: how long will my divorce take? What does the process entail? How many steps are there and what are they? How do I prepare for trial? Here is a helpful breakdown of the divorce process although it is important to note that each case is unique.
It can be difficult to estimate the total length of the divorce process. However, the process begins when one of the parties files a proceeding in court called an Application for divorce (you can also file a formal request for a safeguard order for emergencies and a formal request for provisional measures, for example for custody). Your spouse is then served (receives) the application with all of your requests.
Your spouse then has 15 days to file an answer in the court record. Then you go to court if a safeguard order or provisional measures are requested, but this is not the trial, this is in order to obtain temporary order from the court while waiting for trial. Requests for provisional measures must be made 10 days or more after they have been served, however this delay can be reduced if there is something urgent, which is called an Application for safeguard order or Application for interim measures.
The next step is to complete a timetable with deadlines for certain procedural steps to be completed, which is called a case protocol (examinations out of court – questioning of witnesses, deadline to file an expert report, etc.). The case protocol must be filed in court within 3 months of service. The judge will then have a hearing on provisional measures for example on child custody, child support, etc. The decision is temporary. The parties must fix a date for trial. To get a trial date, all documents must be ready within 1 year after the judge accepts the case protocol. The trial is then scheduled, the number of days is based the nature an d complexity of your case, it can be any length between a few hours to a few days, or weeks. After the trial, the judge has approximately 6 months to render his or her judgement.
However, if you and your spouse agree with all the points of your case and sign a consent agreement at any point, a document called a Consent to Judgment on Accessory Measures will be drafted for both parties to sign. Then the consent is homologated by the court and it has the same force and effect as a judgment following a trial.
The trial is the final hearing in the divorce case. Each spouse’s lawyer (or spouse themselves, if they choose to represent themselves) has a chance to testify, call witnesses to testify, present evidence, question the other spouse’s witnesses, state the law, refer to past decisions that other judges have made in similar cases and present their legal arguments.
The judge is not bound by the decisions rendered on safeguard measures or provisional measures made by other judges earlier in the case. However, judges do tend to maintain the status quo, unless there is a reason to navigate away from that.
The trial judge makes a final decision on the issues raised in the divorce application and issues a judgment within 6 months after the final hearing.
Spouses usually have 30 days as of the date of the divorce judgment to file an appeal.
If there is no appeal, the divorce judgment takes effect on the 31st day after the judge made the decision.
It is important to note that the section of the divorce judgment dealing with custody of the children, visiting rights and support payments can be reviewed in the future if there is a change of circumstance.
If you have any further questions, do not hesitate to contact our top Montreal divorce lawyers.