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What Is Contested vs. Uncontested Divorce?

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A close-up of a couple's hands as they sit across from each other with divorce papers, a pen, & gold bands on the table

Divorce is among the top 5 most stressful experiences a person can go through. 

Even if your divorce seems “easy,” it can still be a very emotional and trying process. There are many factors to consider while also dealing with the stress of an ending relationship (no matter how good or bad).

Hiring a family law lawyer can help you manage the stress of divorce and take certain trying tasks off your plate. 

Contested vs. Uncontested Divorce

Divorce is a legal process in which a married couple dissolves their marriage by court or other competent body. It falls under the branch of family law in Canada.

There are 2 types of divorce: uncontested divorce and contested divorce.

  • An uncontested divorce is less complicated as both spouses agree on all issues concerning the divorce. This includes the division of property, spousal and child support, debts, and parenting related matters.
  • A contested divorce can be more complicated but is more likely. In this kind of divorce, the spouses are unable to agree on the terms of the divorce. As a result, they must appear in court or before another legal body, where a judge can make decisions based on the information surrounding the divorce (unless the spouses decided to attend a binding Arbitration process in resolving some or all of their family law matters).

Understanding Uncontested Divorce

In Canada, uncontested divorces have varying terms and requirements by province. Although generally, couples must agree on all or most terms of the divorce. 

With uncontested divorces, there’s no need to appear before a Judge. However, it is helpful to consult a family law lawyer beforehand. If you and your spouse believe you can work out all divisions of your divorce, you may find pursuing an uncontested divorce much easier. 

Some couples find it helpful to hire a mediator to work out all divorce terms. 

Understanding Contested Divorce

In Canada, contested divorces are governed by the Divorce Act of Canada

Contested divorces consist of many steps, no matter how many or how few family law matters are being contested. You and your spouse have to file a Statement of Claim for Divorce, and you should each hire a family law lawyer

During a contested divorce, you’ll likely complete pre-trial steps such as negotiations, settlement attempt(s), possibly go to court, and attend a questioning of you and your spouse. If you or your spouse disagree with the outcome of the court, you may also wish to pursue an appeal process. 

With the help of your divorce lawyer, you can present your side and requests to a judge who will make a decision on all terms of your divorce. The judge’s decision will be delivered as an official order, and failure to meet the arrangements set out by this order will be considered a breach of law. 

A couple sitting on opposite sides of a table with their mediator in between them discussing divorce terms

Property to be Divided During a Divorce

If you are considering or just starting a divorce, you should think about how you and your spouse plan to divide up the assets you own, such as your family home, vehicles, or savings. 

Family Property

Family property refers to any assets acquired by either spouse (together or individually) during their marriage. This includes:

  • Artwork
  • Jewelry
  • Vehicles
  • Stocks/shares
  • Vacation homes
  • Savings accounts
  • Investment properties
  • Homes 
  • Savings in bank accounts

These assets can be divided or sold, but this must be agreed upon by both spouses. 

Family Home

Family home refers to the primary residence occupied by both spouses during their marriage. For couples seeking a divorce in Alberta, the “family home” can only be considered a “family home” if it’s located in Alberta and is leased or owned by one or both spouses. 

Your family home could be an entire house, part of a house, a condo or apartment, or a mobile home. However, your family home wouldn’t include property owned by someone else (like a parent’s house). 

Exempt Property

Exempt property refers to assets acquired by either spouse before the marriage. It also includes assets that were inherited or gifted to either spouse during their marriage. 

Exempt property is not subject to division during a divorce. However, if any exempt property increases in value during the marriage, that increase in value is not exempt from division under the Family Property Act.

How Much Will It Cost?

It’s difficult to know how much your divorce will cost until you begin the process. Every case is unique. 

Based on the cost of an uncontested divorce in Alberta, it would be fair to say that you could get an uncontested divorce done for approximately $2,500. Contested divorce could be double or triple this cost (if not more). 

How Long Does a Divorce Take?

This is another difficult question to answer, as each case is unique.

Generally, the more you and your spouse agree on, the quicker your divorce can be. However, if you need mediation, go to trial, find witnesses, or discuss custody and support related matters it can make the process much more time-consuming. 

Divorces can take weeks, months, or even years to complete. 

Making the Right Choice

Divorce is scary and overwhelming enough without the added stress of all the legal considerations and paperwork.

Hiring a family law  lawyer, even if your divorce seems straightforward, can help you make sense of everything. It can also help you feel less alone during this difficult time.If you are preparing or starting a divorce, consult our team at KH Dunkley Law Group. We can guide you through the process with ease and empathy. View our flat fee pricing for more information.

This memorandum is for informational purposes only, does not constitute legal advice or an opinion, and does not create a solicitor-client relationship. This is an overview and is not intended to be a complete and exhaustive explanation of the concepts covered. This information may become inaccurate based on passage of time or changes in the law. Nothing herein should be relied upon without seeking the advice of a lawyer.

Written by Khalil Haji

Khalil is the principal lawyer of KH | Dunkley Law Group. He is experienced in all areas of the law serviced by KH | Dunkley Law Group, with extensive experience in residential and commercial real estate transactions, commercial financing transactions, development and condominium law, mobile home transactions, leasing, purchases and sales of businesses, contract drafting, and wills and estate administration.
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