New Brunswick divorce details
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Divorce usually divided into two main types: contested and uncontested. A contested divorce occurs when spouses cannot resolve issues related to their marriages, as a result of which they have to attend court sessions so that the judge can decide on dispute. A contested divorce can last from several months to a year, depending on the number of contentious issues and the willingness of the spouses to compromise. It is also not a secret that a contested dissolution of marriage is expensive since the lion’s share of funds must be spent on the services of lawyers.
An alternative to legal debate is uncontested or, as it is also called, amicable divorce. Its essence lies in the fact that the spouses have agreed on all the controversial points of the divorce before the beginning of the hearings. Oftenly, such a dissolution of the marriage takes place rapidly, because the spouses simply have nothing to share in the courtroom. Also, in many cases, an amicable divorce does not involve the participation of attorneys, but the spouses can still use the services of lawyers if they want to.
In order to get an uncontested divorce there should be no disputes between spouses regarding the whole process of dissolution. It is worth noting that the amicable divorce in New Brunswick can be obtained no less than 7 weeks.
The main condition for an uncontested divorce is the lack of disagreements, which means that spouses must find a compromise regarding the following circumstances:
- Separation of custody of common minor children.
- Determine the amount of monthly financial support for children.
- Division of common property.
- Amount and period of spousal support payments.
- Any other nuances that may arise in the process of divorce.
In order to file for divorce, each couple must have a reason on the basis of which the spouses want to dissolve their marriage. Only the grounds prescribed by law are suitable for divorce. So, a divorce in New Brunswick is allowed to file for the following reasons:
- Spouses live separate and apart for one year prior to filing a lawsuit. It is also considered as a no-fault ground and is suitable for uncontested divorces, since spouses do not blame each other for the fact that the marriage is broken. In fact, the vital paths of the spouses have diverged and there is no a single hope for the restoration of relations. The legislation allows couples to cohabit for 90 days during the separation period in order to reconcile. However, if reconciliation failed, the spouses must separate if they still want to get a divorce.
- Cheating on spouse. The reason based on which one spouse is guilty of adultery on the side, and the court will require proof of the guilt. It is worth noting that the plaintiff does not have to invite his/her spouse's lover to the courtroom. A good proof will be a messaging between spouse and a lover, an extract of phone calls or corresponding movements on a credit card.
- Domestic Violence and Cruelty. The reason, which also requires compelling evidence in court, so the judge will take into account the police reports, medical reports, witness from the injured party.
Divorce can be obtained provided that the marriage is legitimate, in other words, Canada recognizes that the marriage has a legal force. In addition, one of the spouses must be a resident of New Brunswick. This means that one of the spouses must reside in New Brunswick for 1 year prior to filing a lawsuit with a court.
The first step that spouses must take on the way to an uncontested divorce is to resolve all contentious issues if any. Spouses must find a compromise and come to a common understanding of how they want to obtain a divorce. After that, the spouses must decide on the petition, which they are going to file. In New Brunswick, there is a Petition for Divorce (Form 72A), which files only plaintiff and Joint Petition for Divorce (Form 72B), which both spouses fill out together. Depending on which option is more preferable, that Form should be filled out. It is also worth paying attention to the fact that the forms are filled out either in English or in French. Necessary forms can be purchased at the Court of Queen’s Bench office in the district where any spouse lives.
The court may request additional forms, for example, Financial Statement and Other Income Information (Form 72J), if the spouses have minor children, this form will help to determine the amount of monthly financial support for the child. Depending on the circumstances of the marriage, the spouses will have to fill out any additional papers. It is also necessary to attach a Marriage Certificate to the already assembled package of documents. When all documents are ready, the spouses should go to court to register their case and pay the court’s fee.
DIY divorce is a great way to get a divorce without the help of a lawyer. Any spouse has the right to independently fill out all the necessary papers, sue them and represent their interests in the courtroom, it is absolutely legal. This method is well suited for uncontested divorces, where both spouses agree to dissolve the marriage. Do-It-Yourself divorce is much cheaper since it does not need to spend money on a lawyer’s remuneration. In order to simplify the task, many couples turn to our service for the help, because in just 2 working days we provide all the necessary package of ready documents. At the same time, it will not be necessary to spend time on drawing up any papers, because all this has already been done by our services. All that remains is to sue the documents prepared by us with the court.
Basically, the cost of a divorce depends on the circumstances of each couple, because the price varies based on the forms that the spouses submit. But the average price may be about $250-300. In addition, if the spouses decide to use the services of lawyers, it will be an additional cost in accordance with the hourly rate of an attorney.
The time required to obtain the final decision regarding the divorce is different in each case. It depends on the complexity of the divorce and on the workload of the court. An uncontested divorce can be obtained fairly quickly, in just a few months, if the court is not overloaded with other cases. With regard to the contested divorce, the process can last a year. The more conflicts a couple has, the more court sessions they will have to visit before the judge can figure out everything and make a final decision.
The list of documents includes:
- Petition for Divorce (Form 72A)
- Joint Petition for Divorce (Form 72B)
- Cover Letter
- Personal Service (Affidavit of Service – Form 18B)
- Service by Registered Mail (Affidavit of Service – Form 18B)
- Acknowledgment of Receipt Card (Form 18A)
- Cover Letter for the Trial Record
- Cover Page for the Trial Record
- Index for the Trial Record
- Certificate of Readiness (affidavit evidence)
- Request for Divorce (Form 72K)
- Petitioner’s Affidavit
- Agreement Not to Appeal (Form 72L)
- Letter to Request a Certificate of Divorce
- Notice of Discontinuance
- Affidavit Supporting Joint Petition
- Index for the Trial Record (Court Hearing)
- Certificate of Readiness (for Court Hearing) (Form 47B)
Above is the main list of documents that may be required in court. And yet, not all of them need to be filled out. Spouses sue only those papers that correspond to the peculiarities of their divorce.
Since the time when a divorce case is registered in court, the plaintiff has 6 months to serve his/her spouse. This is necessary in order to transfer copies of all documents to the respondent, thereby notifying him or her of the commencement of the divorce proceedings. If the spouses submit a Joint Petition, they should skip this step.
So, in New Brunswick, there are several ways of serving, set by the law:
- Handing the paper over to a spouse personally. This can be done with the help of a relative or friend who has reached 19 years or using the services of a private company.
- Service by Registered Mail or Courier - are professional services that are engaged in serving.
- Substituted Service. This works when the plaintiff does not know where his or her spouse is and cannot transfer copies of documents. In such a case, the claimant should apply to the court with a request to change the way of serving. If the court makes sure that it is not possible to contact the defendant, it will offer an alternative method. For example, to transfer documents to relatives of the respondent or to publish an advertisement in a newspaper.
When they say online divorce - they mean the service, which prepares all the necessary documents. This is a huge help, especially for those who want to make a divorce on their own. Many couples have already managed to verify the effectiveness of our work. Our online services prepare all the necessary documents depending on the case of each pair. In just 2 working days we may provide a complete package of ready documents which are 100% approved by the court. Online Divorce is a great way to save nerves and money in the process of marriage dissolution.
The distribution of custody of minor children is always an important issue of divorce. In each case, the court decides based on the best interests of the child. Quite often, parents agree to joint custody, which divides the rights and duties of parents in half with respect to raising a child. But there are also cases when guardianship is given to only one parent, for example, when the second parent did not manifest himself/herself in the process of raising the child or committed acts of violence against the kid.
In any case, parents can amicably agree on the separation of guardianship. If the spouses cannot resolve their differences, then the court decides custody based on an analysis of various factors, for example:
- The wishes of the child, provided that he or she has reached a certain age in order to think sensibly.
- Emotional connections between the child and each parent.
- Desire and ability of each parent to upbring a child.
- History of abuse in the family.
- The physical, mental and emotional state of each parent.
- If there are some other relatives in the family with whom the child has a strong emotional connection.
- The desire and ability of parents to seek compromises in the process of raising a child.
- The ability of each parent to organize a child’s meeting with a second parent and other relatives.
If one spouse gets custody of the child, the other spouse has the opportunity to spend some time with the child, which is also called “visitation”. Such a parent has the right to see the child in accordance with the established schedule, as well as to be informed of all important decisions or events in the child’s life. New Brunswick courts believe that the child should have frequent and long contact with both parents since this is in the best interests of the kid.
Spousal support is the amount of money that is paid from one spouse to the other during the divorce or after the final decision has already been made. Alimony can be awarded to any of the spouses, regardless of gender, the only thing that matters is the financial situation of the spouses. So, if one of the partners is in a difficult financial situation as a result of a divorce, then he or she has the right to demand financial support from his/her former spouse. Canadian courts have Spousal Support Advisory Guidelines (SSAG) - this is a calculator for computation the required amount of support. However, in order to make an accurate decision on the amount and duration of alimony, the court considers various circumstances, such as:
- The duration of the marriage.
- Financial capabilities and needs of each spouse
- The time it takes for the receiving spouse to acquire skills and knowledge that will help him or her to find a good job.
- The contribution that each spouse has made in maintaining family relationships and home.
Division of property is also an integral part of a divorce. According to the Marital Property Act, spouses must separate all property equally, including debts. However, if the debt was used for the needs of only one spouse, then it will not be divided. Spouses can also agree on how they want to divide their property before the start of court hearings, this will speed up the divorce process. But if the spouses cannot agree, the division will depend on the judge. It is also worth knowing that only common property can be divided, in other words, everything that the couple acquired while being married. Any property that was acquired by the spouses before the marriage is separate and is not subject to division.
Debts division follows the same principle as property division. Spouses are equally responsible for the loans. Therefore, in the process of divorce, the debts will be divided equally, this includes mortgages, car loans, credit card bills, lines of credit, etc. However, if the debt was formed as a result of the personal need of one partner and was not used by the second partner in any way, then such debt cannot be divided. Responsibility will continue to lie on the spouse who got it.
It can be difficult for spouses to sit at the same table and resolve all differences. In order to reduce the degree of tension and help the couple think constructively, in New Brunswick, there are services of mediators. Mediators are the neutral side of a divorce who is trained to help the warring spouses to find a compromise. Mediators help the couple to solve all the controversial issues of the divorce, while not forcing anyone to agree on an unfavorable solution.
To get a divorce from a spouse, whose whereabouts is unknown is not easy, but possible. To do this, the plaintiff must take all the same steps as for a normal divorce: prepare all the necessary documents and file them with the court. After that, the claimant must make all possible efforts to find a spouse, for this the court allocates 6 months. If the search has not yielded any results, then the plaintiff should file a petition with the court with a request to change the way of serving. In this case, if the court is convinced that there is really no a single opportunity to contact the defendant, the plaintiff will be offered the opportunity to post a publication in the local newspaper with its intention to divorce. In this case, the publication should be printed during the month. This will be sufficient evidence for the court that the defendant was served. After that, the court will be able to provide the claimant with a final decree.
Default Divorce is what happens if the spouse does not respond to the intent of the claimant to divorce. After the plaintiff has served the defendant, the defendant has 20 days to file a response to the court, provided that the plaintiff and the defendant live in the same province. If the respondent lives in another province or in the USA, he or she has 30 days, and if the respondent lives in any other part of the world, he/she has 60 days to file an answer after he/she received copies of all documents. If the spouse after the expiration of the prescribed period did not react to the divorce documents and did not appear in court, then the divorce can be granted by default.
Annulment is a decision of the court that the marriage has never existed from the legal point of view because it was concluded with violations of the law. The reasons for the cancellation are quite specific and established by law. Thus, it is possible to recognize marriage as invalid if one of the following conditions is fulfilled:
- At the time of the marriage ceremony, one of the spouses was already married and that marriage was not yet dissolved.
- At the time of the marriage ceremony, one spouse was less than 18 years old, and he or she did not have parental permission to marry.
- The marriage was concluded using force, intimidation, or fraudulent tricks.
- One spouse was mentally ill at the time of the marriage ceremony and did not understand what he/she was doing.
- At the time of the marriage ceremony, one of the spouses was under the influence of alcoholic or narcotic substances.
- Spouses are close blood relatives.
After the couple stops living together, it is considered legally separated. In this case, the spouses do not need to wait for a court decision, in order to obtain such status, in NB it’s assigned automatically. Nevertheless, spouses still need to resolve issues related to the separation of custody of minor children, the division of property and alimony. With the help of lawyers or at their discretion, the spouses can draw up an Agreement, which will describe all the nuances and aspects of their separation. Spouses can get a divorce at any time after the legal separation takes effect.
Same-sex marriages are allowed in New Brunswick since June 2005. The procedure for divorce for same-sex couples is exactly the same as for all others. At least one spouse must be a resident of NB province. Spouses also have to go through the steps of property, debts, custody of the underage children division and award of alimony. If the spouses can talk to each other and find a compromise, it may be positively reflected on their divorce, because it may occur in less stressful circumstances and dissolution can go much faster.
If one of the spouses is a member of the Canadian Armed Forces (CAF), then the second spouse has the right to claim part of the military pension, but only if the court makes such a decision or if there is a written agreement between the spouses for Canadian Armed Forces pension division. Separation is possible provided that the marriage lasted at least 1 year and the spouses could not live together for a year. At the same time, deductions from the pension will not be more than 50%.
In New Brunswick, there are no special principles on how to terminate a marriage if the spouse is a prisoner. But the law still allows such couples to get a divorce provided that spouses do not live together for a year. To take into account all the nuances and not to make any mistakes, it is better to consult a judicial clerk. In addition, the plaintiff will also need to get a document on the basis of which his/her spouse is imprisoned, this document will need to be sued along with the divorce forms.
The divorce filing fee is mandatory and in New Brunswick, it varies between $125 and $225 which include all the necessary court fees. There’s an additional fee of $10 for the Clearance Certificate and $7 for the Certificate of Divorce.
By court decision fees may be waived if the claimant is unable to pay. However, a $10 for the Clearance Certificate and a $7 for the Certificate of Divorce are mandatory and must be paid anyway.
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