The goal of the legal process of divorce is to end the marriage and decide such issues as child custody, visitation, child support, spousal support, property and debt division and attorney's fees and costs.

A divorce judgment can be based on an agreement between the parties or result from a trial. An agreement is usually less traumatic for you and your children, and less expensive than a trial. Ultimately, most cases are resolved without a trial.

Divorce is called dissolution of marriage.

Divorce Proceedings

The divorce process varies. What procedures are available and how long the process lasts is unique to the court system. Your lawyer can explain how the process works in Quebec.

The Petition

A divorce begins with the Petition. This document notifies the court and your spouse, when served, that you want the court to end your marriage. It also lists what you are asking for, such as child custody, child visitation, child support, spousal support, property division, attorney's fees and costs.

The Contestation or Defense

After a Petition is served, the other spouse is entitled to file opposing papers or a contestation. In Quebec, if you are served with a Petition  you must file your contestation within a certain specific time or you will lose your right to present your side of the case to the court, and the court might give your spouse everything asked for in the Petition.

Discovery

Each spouse is entitled to information from the other about the case. The legal procedure for obtaining that information is called discovery. Discovery may be a simple, speedy process or one consuming a great deal of time, energy and money.

Discovery may be conducted informally. It is often more efficient and less expensive for lawyers informally to exchange documents and information than to send and respond to interrogatories and requests for production and to take depositions.

Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. Also, people who have been through a divorce value the privacy and control that a negotiated agreement gives them. People are more likely to obey a judgment which is based on their agreement than one which has been imposed on them by a judge. Voluntary compliance is important because enforcement procedures available from the court are usually expensive and sometimes inadequate.

For these reasons, following discovery, and at any time, even during trial, the spouses and their lawyers should try to negotiate a settlement.

Trial

If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits.

Trial is likely to be expensive and unpleasant. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different. A judge, a stranger possibly with a viewpoint, temperament and values very different from yours tells you and your spouse how to reorder your lives, divides your income and assets, and dictates when each of you may see your children.

Sometimes, a trial does not end the case. Each party may, within a limited period of time, appeal to a higher court. An appeal adds more time and expense to the divorce process and is hard to win.

Alternative Dispute Resolution

There are other methods of resolving your case. These methods are called alternative dispute resolution and include mediation.

Mediation

In mediation, the parties meet with an impartial individual, who should have special training and qualifications for the purpose of helping them reach an agreement. It is important to have independent representation throughout the mediation process. The parties should consult with their own lawyers about mediation and the legal ramifications of any proposed agreement.

For more information, please call Margherita Morsella at 514-376-0335