Divorce Procedure Question

[baileybug]

My husband served me with divorce papers with an out-of-date, lame separation agreement attached. I spoke with my lawyer and she gave me three choices - do nothing and the divorce will go through, but I will not know the details of it (like child support etc), have her talk to his lawyer and insist we see and approve the affidavit before the "second" filing, or file an answer. I chose to go route 2.

So now, my lawyer has told his lawyer the sitation, and we are waiting to see the affidavit.

The 30 days for the "answer" have now passed, and it's been about another week.

-How long does he have to file the second part for the divorce that includes the affidavit?
-Once he file sthat part, how long does it take (in Toronto) usually to finalize?

My ex also needs me to wave the 30 days appeal time after the second filing, as he's getting married next month!

Thanks.

[Lindsay]

Hi bailey,

When a proceeding is commenced, the file will automatically dismiss within 200 days if the file remains dormant. So, assuming you were served the same day the application was issued, your husband has approximately 163 days to file the affidavit for divorce.

Toronto is a high-volume city, so it could take a few months. I would say that your divorce order will be signed within 1 to 2 months from the date your husband files his affidavit for divorce.

In regards to waiving the 31-day appeal period, I highly doubt your husband will be able to get away with this. I have personally only seen a judge allow this once, and it was because one of the parties was termially ill and wanted to remarry before she passed away. I cannot see a judge allowing the appeal period to be waived simply because your husband wants to remarry ASAP.

So, combining the wait time for the order to be signed with the appeal period, I am guessing it will take another three months for your divorce to be finalized from the time the affidavit for divorce is filed.

Lindsay

[baileybug]

Thanks Lindsay.

I thought he was cutting it pretty close. Seems he's been having a hard time getting ahold of his lawyer. He didn't even know I had a lawyer yet, and that was a week after my lawyer met with his!

He has everything all planned for the wedding about 3 weeks from now! We are also trying to rush through a parenting plan, as I am doubtful he will be committed to finishing one, once we are divorced.

He was surprised to find out that custody and child support are to be dealt with in the affidavit for divorce - he thought it was the parenting plan!

He is convinced that as long as I waive that waiting period he will be able to get re-married right away.

Would there be some reason his lawyer would be waiting to create the draft affidavit to file?

Thanks

[Lindsay]

Hi baileybug,

That's right. The affidavit for divorce sets out the custody and access situation, as well as child support. What is most important is that the child support payor is paying the minimum Guideline amount based on his/her income. These issues must be dealt with in the affidavit so as to assure the judge that the children are being properly cared for financially. If the judge finds that this isn't the case, he/she will not sign the divorce order.

As far as setting out the custody/access situation in the affidavit for divorce, this isn't nearly as crucial as child support. However, if the custody situation is shared, the applicant must describe the parenting schedule in detail so as to validate why he/she is paying less than the Guideline amount (since in most shared custody situations, the parents will set their child support obligations off against each other, resulting in a less-than-Guideline monthly amount from the parent with a higher income).

So, if child support is still an issue, then I would say that is definitely the reason for delay. However, if there is an interim agreement in place and you and your husband are simply negotiating a meatier parenting plan, there is no reason why the affidavit for divorce can't be filed now.

The cause for delay could also be administrative. Perhaps your husband's lawyer has been in court a lot lately, on vacation, or perhaps he/she simply has not found the time to complete the affidavit.

Lindsay

[baileybug]

Actually there is no interim agreement in place. He tried to attach one that described our schedule for a month in our life about 3 years ago - which is no longer applicable! That was one of the things my lawyer had a problem about in regards to his divorce agreement. I wonder if a judge would have a problem with that too? It was very specific about dates.

[Lindsay]

Hi baileybug,

I am unsure why your husband would submit a schedule that is three years old unless he wanted to court to think that the schedule is still being followed. The judge must know what the current schedule is.

It was a good idea for your lawyer to arrange for your review of the affidavit for divorce before it is submitted. You can at least be sure that your husband is setting out the true parenting schedule. While I think it is unlikely that your husband would submit the affidavit for divorce without allowing you to review it and give the judge the impression that the three-year-old parenting agreement is still being followed, this would not stop you from bringing the parenting issue to court in the future.

Lindsay