The topic of divorce is one that many prefer to avoid as it is complex and typically emotionally charged. The process of ending a marriage frequently sees disagreements and disputes between the separating parties, making it difficult for all involved.
For those seeking a divorce in British Columbia, the two types of divorce are contested and uncontested, each with its own procedures. You may also hear the terms amicable divorce and desk order divorce and wonder what they mean. We will look at each to see how they differ and how they are the same.
Knowing and understanding these types of divorce will give you the information you need to make informed decisions that should allow for a smoother and more efficient process in a difficult time.
Amicable Divorce: Working Through the Process Together
The term amicable refers to the relationship between people and generally denotes either a spirit of friendliness or at the least, a lack of major disagreement or animosity. As one might therefore assume, an amicable divorce, sometimes called a friendly divorce, is one where spouses maintain a cooperative and collaborative relationship as they dissolve their union.
This is the ideal type of divorce, as it is one where both parties agree to work together in a generally non-confrontational manner to reach an agreement on the key factors of the separation. This may include but is not limited to the division of assets and spousal support.
Amicable divorces will still include the participation of Family Lawyers or other legal professionals, who can provide necessary legal guidance to help the process along smoothly. They also ensure that the agreement between both parties complies with legal standards.
The nature of this type of divorce typically means that it relies on open communication, compromise, and civil, respectful behaviour.
Process of Amicable Divorce
There are a few key considerations that come with an amicable divorce:
Communication
When proceeding with an amicable divorce, one of the most important elements is ongoing communication between the spouses, as they will need to discuss and negotiate the many aspects of their settlement. Keeping lines of communication open and remaining respectful of one another will help ensure a better resolution for all involved.
Legal Guidance
Amicable divorces may not involve much disagreement and may range from civil to friendly, depending on the circumstances behind the separation. The spouses may continue to care for one another and may be seeking the best, most mutually beneficial settlement possible, but even in this most ideal of circumstances, it is highly advisable to seek independent legal advice.
Both spouses can familiarize themselves with the Divorce Act, which governs divorce at the federal level, but having professional legal support ensures that they fully understand their rights and responsibilities. It also ensures that the proposed agreement is not only fair, but legally sound.
Drafting the Agreement
Once the spouses have come to an agreement on all pertinent issues, they will proceed by drafting a separation agreement which shall be legally binding. The purpose of this document is to finalize and fully outline the terms and conditions of the divorce settlement. Once it has been completed, it will be submitted to the court for approval.
Court Approval
An amicable divorce involves minimal involvement from the court, but it still requires that a judge review and approve it upon confirming that it meets legal standards. The judge’s approval is largely considered a formality, provided the agreement is fair and in compliance with the law.
What Are the Advantages of an Amicable Divorce?
An amicable divorce comes with some considerable advantages, including:
They are More Cost-effective
Amicable divorces are typically less expensive than the more adversarial variety. This is because there is less litigation and as a result, fewer legal fees.
They Provide a Faster Resolution
When spouses work together to find an agreement that is acceptable to them both, the process typically proceeds more smoothly. With less arguing back and forth, terms are often reached more quickly, allowing both parties to move on with their new lives sooner.
They Cause Less Emotional Strain
Many divorces can turn ugly and acrimonious. Amicable divorces may still be sad and disappointing, as they represent the end of a relationship, but because the spouses work together and prioritize cooperation rather than confrontation, they are typically less emotionally draining. Working together, the spouses are less likely to inflict additional emotional pain upon each other.
Desk Order Divorces: A Streamlined Process
When a couple realizes that they are at the end of their marriage, they may be able to reach an agreement on the best way to separate. If there is no major conflict between them and they can find terms that appeal to both, the divorce process can proceed in a more simplified manner, without the need for protracted judicial involvement. This is a popular option for those who are already largely in agreement on the terms of the divorce.
Process of Desk Order Divorce
Steps involved in obtaining a desk order divorce include:
Having an Agreement in Place
Before moving forward with their desk order divorce, the couple must have a firm and comprehensive agreement in place. This agreement should cover all pertinent details of the split, including the terms of spousal support and the division of property.
Preparing the Necessary Documents
Once there is an agreement that both parties find acceptable, the next step is to prepare the necessary documents. The divorce application must be drafted and submitted to the court. This will include the supporting documents, such as a separation agreement.
As with any divorce, a legal professional should help with the documents to ensure that everything is done to the proper standards. It has been reported that as much as 90% of desk order divorce applications in BC are rejected due to incompleteness, lack of proper wording, lack of proper legal procedure, and other issues that could be avoided with proper legal advisement.
Court Approval
With a desk order divorce, approval from the court is required to finalize the process. The judge will review the documents that you have submitted and, if they are satisfied, will issue a divorce order. Once the agreement has been approved, it becomes final; the couple is divorced, and the terms come into effect.
What Are the Advantages of a Desk Order Divorce?
A desk order divorce has advantages that make it a popular option, including:
Efficiency
Desk order divorces are known for their greater efficiency. Couples that have already worked out many or most of the details of their divorce will select this option, which means that they are already well on their way to finalizing the dissolution of the marriage. This makes the process faster as what is typically the most difficult part has already been completed.
Reduced Costs
The streamlined nature of a desk order divorce means that the legal costs are typically lower than more complex proceedings.
Limited Court involvement
This type of divorce does still involve court approval, but compared to other, more confrontational cases, court involvement is kept to a minimum. This reduces the time and effort required to finalize proceedings.
Uncontested Divorce: Both Sides Agreeing to Divorce
A contested divorce is one in which the spouses cannot reach an agreement regarding some or all the issues between them. It may also be the case that only one party wants the divorce. An uncontested divorce, then, is one in which the opposite is true: the spouses are generally in agreement on the particulars of their case and able to move forward.
Their agreement, in this case, may be the result of negotiation or mediation. However, they reached the agreement, they should now have a foundation for a smoother resolution.
Process of Uncontested Divorce
The process of uncontested divorce is similar to the others above, though perhaps with an additional step:
Negotiation or Mediation
If the spouses are experiencing difficulty in reaching an agreement, they may need to negotiate until they can find a solution. Alternatively, they may need to seek a mediator to help them with communication and finding an agreeable compromise.
Legal Assistance
Uncontested divorce doesn’t mean there are no disagreements or differences of opinion. The spouses may not be quite as friendly as in other cases, making independent legal advice even more crucial than in amicable or desk-order divorces. This will help to ensure that both parties have their rights protected and that the proposed agreement is both fair and legally sound.
Document Preparation
As with a desk order divorce, legal documents must be prepared for submission, including the divorce application and separation agreement. Legal support will help in preparing these documents fully and correctly.
Court Submission
Once the documents are completed, they are submitted to the court for approval. Provided the agreement is legal and fair in the judge’s estimation, the divorce order is issued, ending the marriage.
Advantages of Uncontested Divorce
As with the other options above, uncontested divorce has certain advantages:
Flexible Resolution
Uncontested divorces provide flexibility that may be needed to resolve disputes. This includes negotiation, mediation, and collaborative law.
Quick Resolution
Once any significant objections have been overcome and an agreement has been made, a divorce can proceed as uncontested, facilitating a quicker resolution.
Cost-Effective
As with amicable and desk order divorces, uncontested divorces tend to be less contentious, making them more cost-effective, due to less time spent in court and reduced legal fees.
Key Differences Between Amicable, Desk Order, and Uncontested Divorces
Upon reading all the above, there may seem to be very little distinction between amicable, desk order, and uncontested divorces. They are, in fact, very similar in that they all rely upon agreement between the two spouses to work through the process in an agreeable, non-confrontational manner as much as possible. There are a few differences, however, including:
Level of Cooperation
An amicable divorce is one that places considerable emphasis on cooperation. The spouses collaborate to find the best possible resolution as they work through the divorce process.
A desk order divorce assumes that the spouses have a pre-existing agreement and therefore focuses on streamlining the legal process. It is an option for those who have already cooperatively settled any existing disputes.
An uncontested divorce is a simple one in which both parties have come to an agreement on the terms, but it is not always indicative of a high level of cooperation and may be the result of extensive mediation.
Court Involvement
Every divorce will require some form of legal involvement, but the extent to which the courts are involved will vary.
In an amicable divorce, the judge is primarily responsible for ensuring full legal compliance in the divorce agreement. It is in some ways viewed as a formality.
A desk order divorce requires court approval for the divorce to be finalized. The process tends to be streamlined, with limited court appearances.
Uncontested divorce has a similar level of involvement as desk order divorce, though it can vary according to the specific circumstances of the case.
Complexity of Dispute Resolution
Every divorce is its own individual case and as such, each will require a different degree of dispute resolution.
Amicable divorce usually progresses smoothly, with open and honest communication between spouses as they seek to make the process as painless as possible. Legal professionals may offer assistance, but there is typically less difficulty in finalizing a viable agreement.
Desk order divorces typically involve couples that have already come to a clear agreement, though there may need to be some adjustments to remain legally viable.
Uncontested divorce provides the couple with a good deal of flexibility when it comes to resolving disputes. This may require collaborative law, mediation, or simple negotiation.
Speed and Efficiency
Amicable divorce will generally be faster than the more contentious variety, but there is always some variation according to the specifics of the case.
Desk order divorce is known for being efficient and for providing a relatively quick resolution due to a pre-existing agreement between the spouses.
An uncontested divorce may be faster than a contested divorce, but it will vary significantly based on the type and length of dispute resolution.
Making Informed Decisions When Dissolving Your Union
While many couples are eager to put the process of divorce behind them and start their new lives it is important to choose the best approach for their individual situation, allowing both partners to exit their union as gracefully as possible. Choosing the right approach can have a significant impact on both the proceedings and the lives of the spouses following the end of their marriage.
Seeking independent legal advice is crucial, even when a case appears to be highly amicable and straightforward, as it allows both parties to be fully informed of their rights and ensures legal compliance.
With an understanding of the different options available, couples can more easily process their divorce, allowing them to move on to the next part of their lives.
If you would like to talk further about working through an Uncontested or Amicable Divorce in British Columbia, contact Hillside Law. We specialize in these types of divorce agreements. We can help anywhere in BC.
