To initiate the divorce process, you must file a complaint for divorce with the Probate and Family Court for the county in which you and your spouse last lived together if one of you still lives at that residence. Otherwise, if you both no longer live at that last residence, then you may file your complaint for divorce at the probate and family court in the county where either of you live. The court clerk will process the complaint and assign your case to a judge, who will oversee your case for the indefinite future. The court clerk will send you/your attorney the complaint summons, which will have to be “served” to your spouse by either a constable or disinterested party. If you are the defendant in this process and were “served” the complaint and summons, you have 20 days to file an answer and, if you choose, counterclaim for divorce.
Within 45 days of the defendant being served the complaint and summons, the parties are supposed to exchange three years of tax returns, bank and investment accounts, any financial applications, last four paystubs and information regarding health and dental insurance. This usually provides both parties enough information to analyze the finances of the case. If there are complex issues or concerns, then formal “discovery”, such as a request for production of documents, interrogatories and depositions can be served to opposing party/counsel to supplement the initial three years of documents.
If there are custody or child related issues, it may be necessary to have a Guardian Ad Litem, or “GAL” appointed by the court to investigate the custody or child related concerns.
Another significant step to note is the completion of the Probate and Family Court Financial Statement form. It is imperative to fill out the form completely and accurately, as the Court will enter a financial order or grant a divorce based on the information provided.
If it is necessary to define responsibilities through court orders, either party may file motions, which are presented to the judge or negotiated between the parties. These Temporary Orders will remain in effect until it is superseded by another agreement between the parties, new court order or judgment of divorce.
Once the case issues have been identified and discovery complete, a pretrial conference is requested by one or both of the parties and the court schedules a pretrial conference hearing before the judge assigned to your case. A pretrial memorandum must be drafted outlining and detailing the facts of the case, the issues that are contested and uncontested. The pretrial order issued by the judge specifies the information that should be included in the memorandum.
The pretrial conference is a hearing held by the Judge, who reviews the pretrial memos of each party and provides insight on how the matter should resolve. A high percentage of cases settle after this hearing. Some cases require time to negotiate terms, per the recommendations of the judge, and draft a divorce agreement, known in Ontario as a Separation Agreement. Others decide to proceed to trial and the court will assign trial dates, with specific orders about the requirements for the trial.
If your matter proceeds to trial, the judge will hear testimony of witnesses and review exhibits in order to make a decision regarding the contested issues, such as custody, support, division of assets and debt. It may take the judge a number of months to draft the findings of facts from the trial and judgment of divorce. Until the divorce judgment is issued, all temporary orders that may have been in effect continue until replaced by the divorce judgment.
Once you receive your divorce judgment, there may have been errors of law that justify an appellate review of the trial judge’s decision. If there are appealable issues, you may appeal the divorce judgment to a higher court. However, this must be done with caution and understanding that there are specific time constraints and appeal quality documents that must be prepared submitted with precision.
View information about the Uncontested Divorce Process.
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