Separation/Divorce

Frequently Asked Questions About Divorce

1. What is divorce?

Divorce is the legal end to a marriage. You have to apply to the court to become divorced – divorce never happens automatically in Canada, no matter how long you are separated from your spouse.

There are basically two types of divorce proceedings – uncontested and contested. An uncontested divorce occurs when both you and your spouse are applying for a divorce based on one year's separation, and you agree on all of the outstanding issues resulting from your separation and divorce. A contested divorce means that you and your spouse do not agree on some or all of the outstanding issues resulting from your separation or divorce.

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2. What is the Divorce Act?

The Divorce Act is the law that applies to all divorces filed in Canada. No matter which province or territory your divorce is started in, it is dealt with under the Divorce Act. The Divorce Act applies to heterosexual and same sex couples who were married and are now divorcing.

When you are divorced, and in the future need to apply to the court to change your Corollary Relief Order (the order issued as part of your divorce), you will still use the Divorce Act to apply for this variation.

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3. Do common law couples or Registered Domestic Partners use the Divorce Act?

No. The Divorce Act, and the process of divorce, only applies to couples who were married. Common law couples and Registered Domestic Partners cannot use the Divorce Act when they break-up, though there may be other court applications they can make if necessary.

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4. How do I apply for a divorce?

As of March 2012 in Nova Scotia, there are three ways you can begin the divorce process:

  • by filing a Petition for Divorce
  • by filing an Application for Divorce by Written Agreement
  • by both parties filing a Joint Application for Divorce together.

The Application for Divorce by Written Agreement and the Joint Application are always uncontested divorces, while the Petition for Divorce may or may not proceed on an uncontested basis. In Halifax and Cape Breton, divorces are dealt with at the Supreme Court (Family Division), and in other areas of Nova Scotia, at the Supreme Court.

If you are applying for a divorce in Halifax or Cape Breton, you will use Rule 59 forms. If you are applying for a divorce elsewhere in Nova Scotia, you will use Rule 62 forms.

If you have a lawyer, they will help you to start your divorce and file the necessary paperwork. If you are filing for divorce on your own, you can access the forms you need on the Courts of Nova Scotia website. You should check with a lawyer or court staff, though, to make sure you are filing the proper forms needed in your case. Many Nova Scotia courts also offer a ‘Do-it-yourself Divorce Kit’ containing the forms needed for a divorce. You must contact the court where you will be filing your divorce to purchase a copy of the kit.

For check-lists to help you determine what you need to file for your divorce:

If you are filing a divorce in Halifax, Sydney, or Port Hawkesbury, click here.

If you are filing a divorce in Amherst, Antigonish, Bridgewater, Digby/Annapolis, Kentville, Pictou, Truro or Yarmouth, click here.

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5. What are the ‘grounds for divorce’?

In Canada, divorce is always based on the ground of ‘marital breakdown’, and there are three ways to show that your marriage has broken down. These include:

  • One year’s separation from your spouse: living “…separate and apart for at least one year immediately preceding the determination of the divorce”
  • Adultery: “the spouse against whom the divorce proceeding is brought has…committed adultery” (this means you cannot apply for divorce based on your own adultery – it has to be the other spouse who committed it)
  • Cruelty: “…physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses.” This means that the cruelty had to have been of a serious nature, and you could not continue to live with your spouse as a result.

The majority of divorces are filed based on one year's separation.

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6. If I show that my spouse committed adultery or cruelty, does that mean I have more rights than they do in the divorce?

No. Divorce in Canada is always ‘no fault.’ Using the grounds of adultery or cruelty does not mean that you will ‘get more’ from the divorce, or that you will be given more money or rights as a result of your spouse’s behavior. It also does not mean that you will get more parenting time or more decision-making power in relation to your children.

If you can prove that your spouse committed adultery or cruelty, this just means that your divorce may be finalized before waiting for one year's separation; however, because using these grounds can be complicated, there is no guarantee as to how long it will take to be finalized.

If you use the ground of adultery, you do not need to name the person that your spouse committed adultery with; however, if you do name that person, you will likely have to serve them with notice of the divorce, along with your spouse.

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7. What is the difference between an uncontested and a contested divorce?

An uncontested divorce occurs when you and your spouse agree on all of the outstanding issues resulting from your separation and divorce. This means that you have both agreed on absolutely everything - parenting arrangements for your children, child and spousal support issues, and how to divide your property, assets, debts and pensions. When your divorce is uncontested, you will likely never see the inside of a courtroom – you will file paperwork, and your divorce will be processed ‘behind the scenes’ by court staff and a judge.

When your divorce is contested, this means that you and your spouse do not agree on some or all of the outstanding issues resulting from your separation and divorce. A contested divorce starts when one party, the ‘Petitioner’, files a Petition for Divorce, and the other party, the ‘Respondent’ files an Answer to indicate that they are contesting something that is being asked for by the Petitioner.

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8. Why should I file an Answer?

If you don't file an Answer, you run the risk that a judge will grant a divorce with the terms requested by the Petitioner and without further notice to you, even if you do not consent to it.

You can get a copy of an Answer form from the court where the divorce was filed, or you can use the online form. NOTE: when you use the online form, you must print it off and file the hard copy with the court where the divorce was filed. You cannot file the form electronically.

If your divorce is being dealt with in the Supreme Court (Family Division) in Halifax, Sydney, or Port Hawkesbury, click here to find the Answer form used in those courts.

If your divorce is being dealt with in any OTHER Supreme Court in Nova Scotia (NOT in Halifax, Sydney, or Port Hawkesbury) click here to find the Answer form used in those courts.

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9. Can I file an Answer after the deadline?

You may be able to file an Answer late (after the deadline set out in the Civil Procedure Rules), but you must have a judge's permission to do this.  Each court may have its own way of dealing with these kinds of requests. In most cases, you would have to file a Motion, with supporting documents, requesting leave (permission) to file late. The matter would then be scheduled for a hearing with a judge who will decide if the Answer can be filed late. If the other party, or their lawyer, agrees to the late filing, then you may be able to make your request as a ‘motion by correspondence’ with no one having to appear in court for a hearing.  Talk to a lawyer if this is your situation.

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10. What is a ‘Counter-Petition’?

The rules that outline how the Supreme Court and Supreme Court (Family Division) operates - the Nova Scotia Civil Procedure Rules - changed in 2010. Before this time, when the person responding to a divorce petition wanted to show that they did not agree with something being asked for by the Petitioner, they had a choice of filing one of two different responding documents. These responding documents were an 'Answer' or an 'Answer and Counter-Petition.'

When a Respondent filed an Answer and Counter-Petition, this showed that they were not in agreement with what the Petitioner was asking for (for example, the 'corollary' issues like custody, access, support, and property division) or wanted to add their own request for relief, and were also requesting a divorce. When a Respondent filed an Answer and Counter-Petition, this made them a ‘Counter-Petitioner’ (a second Petitioner to the divorce). This meant that if the person filing the Counter Petition had just as much right as the original Petitioner to move the divorce forward to be finalized and that the original Petitioner could not discontinue the divorce proceeding.

Filing an Answer, without a Counter-Petition, showed what the Respondent was asking for (for example, the 'corollary' issues like custody, access, support, and property division) or added their own request for relief, but it did not make the Respondent a 'Counter-Petitioner.'  If the Petitioner did not want to finalize the divorce on an uncontested basis, then the Respondent could do nothing except ask for the matter to be scheduled for a trial.

There is now only one document used to contest a divorce petition - the Answer. There is no longer a formal 'Counter-Petition.' Now, if a Respondent wants to also claim a divorce in their Answer to enable them to move the matter forward if the Petitioner does not, they can check off section 8 of the Divorce Act on their Answer form. This shows that they are seeking a divorce too, and it makes them a 'Counter-Petitioner' (though it is not formally called this anymore). It is important that people filing an Answer have the option of whether or not to also seek a divorce, as some people, often for religious reasons, cannot ask for a divorce themselves.

The fees for filing an Answer with section 8 checked off are higher than they are for filing an Answer without this section checked off. There may be other benefits to being a 'Counter-Petitioner.' Speak with a lawyer for advice about your situation.

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11. What is the difference between the Applications for Divorce and the Petition for Divorce?

As of March 2012, there are two kinds of ‘divorce applications’ in Nova Scotia – the Joint Application for Divorce, and the Application for Divorce by Written Agreement.

These applications are always uncontested divorces, meaning the two spouses have worked out all of the issues between them, including parenting and support arrangements, and division of property, pensions and debts. Applications for divorce can only be filed based on one year’s separation – you cannot use the grounds of adultery or cruelty for these applications.

If you file a divorce application, you will likely never see the inside of a courtroom. You and your spouse will sign and file your divorce documents with the court, and your divorce forms will be processed by court staff, and a judge. The filing fees for the Applications are lower than for a Petition.

Petitions for Divorce are used when a divorce may be contested (when the other spouse does not agree with something in the divorce), or if the other spouse will not sign the required paperwork. The grounds of adultery or physical or mental cruelty can only be used with a Petition for Divorce, or, you still have the option of using one year’s separation (which most people do). The filing fee for a Petition is higher than for an Application, and your divorce may or may not end up going to court, depending on whether the other party contests it.

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12. How much does it cost to file for divorce?

As of April 2013, it costs $211.70 to file an Application for Divorce by Written Agreement or Joint Application for Divorce. As of April 2013, it costs a total of $311.80 to file a Petition for Divorce. If you file a Petition for Divorce, and then need to file an Uncontested Motion for Divorce, there will be an additional filing fee of $64.10.

People with a low income may qualify to have their fees waived, with the exception of a $10 fee that has to be charged on all divorces. Check with court staff if you think you qualify for a waiver. You will have to fill out a waiver form, and provide proof of income with it, to show that you qualify.

Please note that fees are subject to change without notice, and generally do increase by a small amount every year. The prices listed above include tax.

If you hire a lawyer to help with your divorce, you will have to pay the fees that the lawyer charges. These fees will vary depending on the lawyer’s hourly rate, and how complicated your divorce is.

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13. I did not get married in Nova Scotia – can I still file for divorce here?

Yes – as long as you have lived in Nova Scotia for at least one year. Generally, the person filing the divorce has to have lived in Nova Scotia for at least one year before filing for divorce in this province. This is so that the Nova Scotia courts have ‘jurisdiction’ and are allowed, under the Divorce Act, to process your divorce.

As long as you were legally married in Canada or another country, and intend to separate from your spouse permanently, and you have lived in Nova Scotia for one year, you can apply for divorce here. You do not need to be a Canadian citizen to apply for divorce in Canada.

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14. Do I have to serve paperwork on my spouse when I file for divorce?

Yes, unless you and your spouse file a Joint Application for Divorce together. Otherwise, you are responsible for arranging to have your spouse personally served with notice of the divorce proceeding. This means that a literate adult (a person over 19 who can read and write) must hand the documents to your spouse to give them notice of the divorce. You cannot serve your spouse with documents. Personal service does not mean using a courier, fax, or registered mail to serve notice on your spouse.

It is best that a Process Server be hired to serve court documents whenever possible. Process Servers are professionally trained to serve court documents, are used to dealing with parties who do not want to be served, and are familiar with Affidavits of Service (the sworn document that proves someone was served). Each Process Server sets their own fees. You can look in the Yellow Pages or online under ‘Process Servers’ or ‘Bailiffs.’ If you have a lawyer, they may know a Process Server you can use.

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15. Can I get an annulment instead of a divorce?

Probably not.  An annulment is when a marriage is declared null and void, as if it never existed in the first place. This requires evidence and a complicated court application.

You will not qualify for an annulment based on the short length of your marriage. Even if you were only married for a day or two before separating from your spouse, you likely still have to use the regular divorce process to end your marriage.

Annulments are very rare, and can only be used in certain situations - usually dealing with lack of consent or fraud. For example, if one party could not legally give consent to the marriage in the first place because they were mentally incompetent or underage, or if one party was already married, and then entered into this new marriage without divorcing their first spouse. Grounds for annulment may also exist if one of the parties was forced into the marriage by threat or duress, or where the parties could not consummate their marriage (one of the parties was unable to have sexual relations with the other).

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16. What happens if I get back together with my spouse after a divorce has been started?

When you get back together with your spouse, this is called ‘reconciliation.’ If you reconcile after a divorce has been started, in most cases, you can stop the divorce process by filing a Notice with the court.

If you reconcile with your spouse for less than 90 continuous days, and then decide it is not working out and to continue with the divorce, that is ok. You can still use your original separation date.

If you reconcile with your spouse for more than 90 continuous days, and then decide it is not working out and to continue with the divorce, you must start counting your one year separation period over again.

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17. Can I stop the divorce process once it has been started?

Generally, yes. If your divorce has not yet been finalized, and you decide not to move ahead with it (for example, if you and your spouse get back together), you can withdraw your divorce application or Petition. This will mean you have to file a document with the court to formally withdraw the application.

Depending on where your divorce file is in the court process, though, it may not be this simple. For example, if the other party filed an Answer to your Petition, making themselves a Counter-Petitioner, then they have the right to continue with the divorce process.

If you have started the divorce process and are thinking of discontinuing it, you should speak with a lawyer for advice.

If your divorce was finalized, and then you get back together with your spouse, you cannot ‘undo ‘ the divorce, though you can get re-married.

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18. We have a separation agreement – does that mean our divorce will be easier?

Maybe, though you still have to go through the formal divorce process and file the required documents. If your separation agreement is up-to-date, and both you and your spouse still agree to the terms in the agreement, you can ask to have the terms of your agreement incorporated into your divorce orders. This means that you do not need to re-word everything for your orders – for certain parts of your divorce documents, you can refer to what is already in your agreement.

If you and your spouse already went to court and have a court order that is still up-to-date, you can also ask to incorporate the terms of that order into your divorce.

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19. My spouse and I have agreed on everything, including child support amounts. Do we still have to file our financial information?

Yes. Child support amounts are determined by the Federal Child Support Guidelines and Tables – they are law, and must be followed. There are some exceptions to the Tables, and these include undue hardship circumstances, having a split or shared custody arrangement, or when a child is over the age of majority (19 in Nova Scotia). Even in these circumstances, there still may be child support ordered, it just may not be the full table amount of support. If you are not following the child support Tables, you should speak with a lawyer for advice.

Generally, whoever is paying child support must file their financial information with the court. In cases where no child support is being paid, or the table amount is not being followed, both parties will likely have to file their financial information with the court.

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20. What does ‘child of the marriage’ mean?

 ‘Child of the marriage’ is defined in the Divorce Act. The definition is “…a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

In other words, a ‘child of the marriage’ is a child under 19 (in Nova Scotia) who still depends on their parents to provide for them, or who is over 19, but still depends on their parents because, for example, they are still in school, or have an illness or disability that prevents them from supporting themselves.

If you and your spouse had children together, but your children are grown and independent, then they are no longer ‘children of the marriage’ and you do not need to mention them in your divorce.

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21. My spouse and I have a court order or separation agreement that already lists the amount of child support to be paid. Do we still have to file our financial information?

Generally, yes. The judge reviewing your divorce needs to know that those amounts are still accurate and up-to-date, as of the time when your divorce is being processed.

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22. What ‘financial information’ do we have to file?

When you are required to provide financial information to the court, this usually means you have to file a sworn/affirmed Statement of Income, your last three years of income tax returns and notices of assessment or reassessment from the Canada Revenue Agency, and two recent pay-stubs, or other official documents showing your current year-to-date income. You should speak to court staff to learn exactly what you will be required to file in your circumstances.

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23. What if my spouse’s financial information is needed, but they won’t give it to me?

You may be able to get a notice, usually called a ‘Direction to Disclose,’ issued by the court, that you can serve on your spouse. Usually, this Direction will be served at the same time as the Petition for Divorce, so that you only have to arrange for service once.

This Direction tells your spouse that even if they are not contesting the divorce, there are still documents that they are required to file. This direction will tell them exactly what they have to file.

Check with your court if this is something you may need. Often, you can just request this Direction to be issued by writing a letter to the Court.

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24. Why do I have to file our original marriage certificate?

Before the court can approve your divorce, they need to have proof that you were married in the first place. Your original marriage certificate proves that you were married. If you were married in Nova Scotia, you are required to file your long form marriage certificate, available from Vital Statistics. The short form, or the small blue and white certificate you received when you married, may not be accepted (particularly for contested divorces), as it is not ‘legal proof of marriage.’

You can visit the Vital Statistics head office in person to get your long form marriage certificate (bring photo ID with you), or you can order it online. There will be a fee to get this certificate. You only need to provide one copy of this certificate to the court. To contact Vital Statistics, you can call (902) 424-4381 or toll-free at 1-800-898-7668, or visit their website.

If you were married outside of Nova Scotia and do not have a copy of your marriage certificate, you must contact the jurisdiction where you were married for a copy of this certificate. If your certificate is not in English, you must provide a certified translation of the certificate, along with the original copy. If you are unsure if your marriage certificate will be accepted by the court, please speak with court staff.

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25. What is a Divorce Order?

A Divorce Order is a formal court document that is issued by a court officer in a divorce proceeding. It states when you and your spouse were married, and on what date your divorce became effective. The divorce order also contains clauses about change of name, if applicable.

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26. What is a Corollary Relief Order (CRO)?

A Corollary Relief Order is another formal court document that is issued by a court officer in a divorce proceeding, and is usually issued on the same date as your Divorce Order. It contains clauses on what was decided as part of the divorce, and addresses issues around custody and access of children, child support, spousal support, and the division of property, assets, debts and pensions.

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27. Do we need a Corollary Relief Order (CRO) if everything is already settled?

In most cases, yes. When you divorce, you ‘re-open’ the issues that resulted from your separation. If you have a separation agreement or court order that is still accurate, you may incorporate the terms of the agreement or order into your Corollary Relief Order (CRO), and attach a copy of the order or agreement to the back of the CRO.  

Even if you and your spouse did not have children, and there is no spousal support or property to deal with, the judge reviewing your file may still require you to submit a CRO, even if all that it states is that neither of you are paying spousal support, and all of your property and debts were divided when you separated. 

There may be other legal or financial reasons why you would want a CRO or why you would want your separation agreement incorporated into the CRO. You should see a lawyer to get advice.

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28. What is a Certificate of Divorce?

The Certificate of Divorce is the last formal court document that is issued by a court officer in a divorce proceeding. When this Certificate is issued, it means your divorce is finished, and you are now free to re-marry.

This is the document you will need in the future if you do decide to re-marry, to prove that you are officially divorced from your former spouse.

This Certificate is printed off by court staff at least 31 days after your Divorce Order and Corollary Relief Order are issued. Court staff will send this Certificate out automatically – you do not need to apply to the court for your Certificate of Divorce.

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29. Why do we have to wait at least 31 days to receive our Certificate of Divorce?

This 31 day period is an appeal period, meaning that during this time, one of the parties can file an appeal with the Supreme Court if they believe the law was not applied properly by the judge in their case. You do not file an appeal simply because you do not like the order the judge made. Appeals generally do not apply to divorces started by an Application for Divorce by Written Agreement or a Joint Application for Divorce, because the parties decided everything, not the judge.

Appeals are quite rare, and are very difficult court applications to make. If you believe you have grounds to apply for an appeal, you should speak with a lawyer.

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30. Can I waive this 31 day appeal period and get my Certificate of Divorce sooner?

In most cases, no. This appeal period can only be waived in very rare situations, such as when one of the parties is terminally ill and it is likely that they will pass away before the divorce would normally be finalized.

A request to waive the appeal period requires that several additional documents be filed, including undertakings and affidavits by both parties. It is up to the judge to determine if the appeal period is going to be waived, when this is requested.

A pending remarriage is not a good reason to request a waiver of the 31 day appeal period.

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31. How long will it take for my divorce to be processed?

That depends on a number of things. The court cannot guarantee that your divorce will be processed in a certain amount of time. If you are planning on getting remarried, you are advised to wait until your Certificate of Divorce is in your hands before you plan your wedding. The court will not speed up the processing of your divorce file because you want to get remarried.

If your divorce is uncontested, and all of your paperwork is filed properly from the beginning, it can still take many months for your divorce to be finalized. There is a lot of background work that court staff must do on a divorce file before it goes to a judge for approval. The judge’s schedule and the availability of court staff to process divorce files will also affect the time it takes for your file to proceed. Some courts have hundreds of divorce files, and they are dealt with in the order that they are filed. This means that if there are 100 files ahead of yours to be processed, those 100 have to be dealt with before your file will be reviewed.

If your paperwork is filed incorrectly, or if your divorce is contested and you have to go to court to resolve the issues, this will mean your divorce will take much longer to be finalized.

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32. I changed my last name when I got married. How do I change it back?

When you get married and you take your spouse’s last name, this is based on tradition. It is not a legal name change unless you applied to the government, through Vital Statistics, to legally change your name (which most people do not do). So, when you separate from your spouse, you can go back to using your birth certificate name at any time – you do not need to apply to the government to do this, and you do not need to wait for your divorce to go through. For example, if you want to get a new driver’s license in your birth certificate name, just bring your birth certificate with you when you go to get your new license.

Sometimes, institutions like banks or other credit lenders, want to see evidence of a legal name change when you get divorced. This is usually to avoid fraud – so that you cannot borrow money or get credit in more than one name. You can do this legal name change as part of your divorce for no extra charge – just fill in the appropriate information regarding your name change wherever it talks about this issue in your court documents. When you are filling in your name in these sections, be sure to include all of your names. For example, if your full birth certificate name is Jane Mary Ellen Smith, make sure you put all of this in. If you only type ‘Jane Smith’, you will legally lose your two middle names.

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33. Can I make my spouse change their last name?

No. If your spouse took your last name when you were married, they have a right to keep that name, even if you divorce.

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34. I want to change my name, but I didn’t start the divorce. What do I do?

As the respondent, you can still do a legal name change as part of the divorce process. You will need to file a separate affidavit with the information required by the court to process your name change. Check with court staff as to what to do if this is your situation.

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35. Can I also change my children’s last names as part of the divorce?

A change of the child’s name can be requested as part of the divorce, but is generally not granted unless both you and the other parent agree to this in writing. Please see a lawyer for advice if this is something you are thinking about requesting.

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36. What is ‘matrimonial property’?

Matrimonial property, or ‘matrimonial assets,’ is property acquired by either or both married spouses before or during their marriage, and includes the matrimonial home(s) (the family home(s) where you and your spouse lived while you were married). The law that deals with matrimonial property is called the Matrimonial Property Act. There are some things that are usually not considered to be matrimonial property and these generally include:

  • Gifts, inheritances or trusts, unless used for the benefit of the family during the marriage
  • An award or settlement of damages, unless used for the benefit of the family during the marriage
  • Insurance proceeds, unless used for the benefit of the family during the marriage
  • Reasonable personal effects (personal items like clothing)
  • Business assets
  • Property exempted under a marriage contract or separation agreement
  • Property acquired after separation

If you are unsure whether some of your property will be considered a matrimonial asset, you should speak with a lawyer for advice.

For more information, please see the Property, pensions and debts section.

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Last updated on June 23, 2014 - 2:04pm
Crafted by Gesso Communications
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