Before beginning the divorce process

You can send a demand letter before beginning the divorce process, but it is not mandatory. However, since it is relevant for some spouses, this subject is discussed at the following questions:

• What a demand letter is - See question 1
  
• What the purpose of a demand letter is - See question 2
  
• What one can do when one receives a demand letter - See question 3

Main Stages of a Divorce

You have 1 year to complete all the steps (paperwork) that will bring you to the divorce trial. Exceptionally, it is possible to ask a judge to extend this period.

Here are the main stages of a divorce when the spouses do not agree:

1. Motion to Institute Divorce Proceedings: It’s the application in divorce. It can be written by a spouse or his lawyer.

• How to apply for a divorce - See question 4
  
• What is included in a Motion to Institute Divorce Proceedings - See question 5
  
• The time required to obtain a divorce - See question 6
  
• What can be done if one receives a divorce application - See question 8

2. Other documents that may be drafted at the same time as the Motion to Institute Divorce Proceedings:See question 7

3. Appearance: A spouse who receives a Motion to Institute Divorce Proceedings "appears", meaning that the spouse officially notifies the other spouse and the Court that she wishes to act in the divorce file.

• How and why to “appear”? See question 8

Click here to see the remaining steps in a divorce.

If the document that you received is truly a "letter", it is perhaps a demand letter. A demand letter is a letter that gives you a last chance to do something or to stop doing something, otherwise you'll be sued.

The demand letter is not the official application for divorce. It may eventually be filed in the divorce file (once the file has been opened in Court) but it is not mandatory.

In the context of divorce, a demand letter may be used, amongst other things, to:

• confirm the intention of your spouse to end your marriage or inform you of that intention
  
• encourage you to come to an agreement with your spouse on everything pertaining to the divorce (this is officially called a "settlement")
  
• let you know your spouse’s position
  
  
   
  For example, your spouse's lawyer may inform you of the following:
  "During your marriage, your spouse was the one taking care of your children. He wants to continue to do so according to the following schedule: ..."
   
  
  
  
• make certain requests or complaints
  
  
   
  For example, your spouse's lawyer may inform you of the following:
  "You must continue to pay the mortgage on the house. Moreover, as the children live with your spouse, you must pay $500 per month to meet their needs. Finally, your spouse tells me that you have certain property that belongs to him. You must return that property to him.”
   
  
  
  
• make you an offer to settle certain issues temporarily or once and for all
  
  
   
  For example, your spouse's lawyer may suggest the following:
  "Your spouse suggests that you pay the insurance and he offers to pay the electricity and telephone services in return."
   
  
  
  
• allow interest to run on a sum of money that you owe your spouse. If your spouse claims that you owe him a sum of money, he can eventually include in his application to the Court that he also wants to recover interest on that money. He could then request that the interest be calculated as of the date you received his demand letter.

When you receive a demand letter, you can:

• do what you have been requested to do (in whole or in part)
  
• ignore or refuse to do what you have been requested to do (in whole or in part)
  
• suggest something else or negotiate with your spouse

If you are unsure of your rights and obligations, consult a legal professional to get legal advice before replying to a demand letter.

To learn more about demand letters, consult our Infosheet Demand Letters as well as our webcast educaloi.tv.

One of the spouses or his lawyer prepares a document entitled Motion to Institute Divorce Proceedings. This motion is the formal request for divorce.

Then, in general, that spouse must:

• make copies of his documents and go to court to pay the fees at the office of the court. This allows him to open his court file.
  
  
• send his spouse copies of his documents by using the services of a bailiff.
  
  
• submit the original documents to the Court including the bailiff’s report that proves that his spouse received the documents. In fact, the bailiff must draw up a report indicating that the documents have actually been received by the other spouse.

Please note that the bailiff can do some of these steps on behalf of the spouse.

Normally, several other documents are drafted at the same time as the Motion to Institute Divorce Proceedings - for example, certain documents to address pressing issues such as child custody. To learn more about these documents, consult our Infosheet Divorce: Obtaining an Urgent and Temporary Ruling Before the Divorce Trial.

For an example of a Motion to Institute Divorce Proceedings, you can take a look at Form I of the Rules of Practice of the Superior Court of Québec in Family Matters .

Don’t forget that this form is a model and does not necessarily meet all the particularities of your divorce. Do not hesitate to consult a lawyer to help you prepare your paperwork or to get some advice.

Click here to obtain explanations on the content of the Motion to Institute Divorce Proceedings.

It is important to understand that sending the Motion to Institute Divorce Proceedings is only the beginning of the divorce process. Several other documents must be drafted and filed. To learn more about these other documents, read the "Main Stages of a Divorce" and the question "Are there any other documents to be prepared at the same time as the Motion to Institute Divorce Proceedings?”.

1. If your spouse agrees with what you requested in your motion, and you can quickly prepare or obtain documents and other evidence necessary for the divorce: a judgement for divorce can be rendered in a few weeks or months, depending on the reason (grounds) for which the divorce is sought and the Court's capacity to process cases.
   
   
2. If your spouse does not agree with what you are asking for (even in part): the process will take longer. It can take many months or even years.

Meanwhile, if you have any urgent issues to resolve before the trial for the divorce, you can make a Motion for a Safeguard Order and/or Provisional Measures. To learn more, consult our Infosheet Divorce: Obtaining an Urgent and Temporary Ruling Before the Divorce Trial.

It depends on your particular situation. It also depends on your ability to gather all the documents you need. Do not hesitate to call a lawyer to get advice tailored to your situation.

Here are some examples of documents that may be prepared along with a Motion to Institute Divorce Proceedings:

• A Motion for a Safeguard Order and Provisional Measures:
  
  
   
  Note that in some districts, the safeguard and provisional measures are included in the Motion to Institute Divorce Proceedings. In other districts, the Motion for a Safeguard Order and/or Provisional Measures is (preferably) written separately from the Motion to Institute Divorce Proceedings.
   
  
  
  This type of motion allows you to obtain a judgment on matters that cannot wait until the final trial, such as custody of the children, or the payment of support. To learn more, consult our Infosheet Divorce: Obtaining an Urgent and Temporary Ruling Before the Divorce Trial.
  
  
• A Child Support Determination Form (often referred to as an "Annex I") and a completed Sworn Statement Under Article 827.5 of the Code of Civil Procedure (often referred to as an "827.5"). These documents are required when seeking support for your children.
  
  
• A Form III Statement of Income and Expenditures and Balance Sheet and a completed Sworn Statement Under Article 827.5 of the Code of Civil Procedure: These documents are required when seeking support for yourself.
  
  
• Form II Attestation in Respect of the Registration of Births This document is necessary to get the divorce. However, it is usually completed at the time of the “Inscription”. See the "Main Stages of a Divorce."

1. Read and reread the Motion to Institute Divorce Proceedings carefully to understand it! It indicates what your spouse is asking from the Court (for example, divorce, child custody and/or support) and contains important information on the next steps of the divorce.
   
   
2. Act quickly! From the moment you receive the Motion to Institute Divorce Proceedings, you generally have 20 days to "appear", that is to say, to officially "show a sign of life" to the Court. Otherwise, you could lose your rights, including that of defending yourself. What is at stake may be the custody of your children, monthly payments or an important sum of money, the sale of your house, etc. If you are thinking about doing nothing, it may be wise to consult a lawyer to make sure you are well informed of the consequences of this decision.
   
   How to appear? You can appear alone or by way of a lawyer. If you represent yourself, you can get information on how to appear at the office of the Court. Usually, a lawyer drafts a document that confirms that you appear (in other words, you want to participate in the court process of divorce) and that his firm is representing you. This document is sent to the other spouse, or their attorney, if represented, and filed with the office of the Court. Fees must be paid.
   
   
3. Pay special attention to the notice accompanying the Motion to Institute Divorce Proceedings! This notice provides important information, including:
   
   • the deadline before which to appear
   • where and when the Motion to Institute Divorce Proceedings will be presented in Court.
   
   The notice can be called by different names: “Notice to Defendant as to Contestation”, "Notice to the Defendant," "Notice to Respondent," "Notice to the Respondent as to Contestation," "Notice to the Defendant in Family Matters”, or another equivalent formulation.
   
   
4. Determine if your spouse is asking for safeguard and provisional measures. If yes, consult our Infosheet Divorce: Obtaining an Urgent and Temporary Ruling Before the Divorce Trial.
   
   
5. You can negotiate! In fact, you can always try to come to an agreement with your spouse. You can also ask a lawyer to do it for you. However, be aware that the negotiations do not affect the time in which you have to act, so it is still prudent to appear before the end of 20 days.
   
   
6. Think about consulting a lawyer to inform you of your rights and options, and to represent you if necessary.

The spouse who drafted the Motion to Institute Divorce Proceedings (or had it drafted), or his lawyer, must choose a date, depending on the availability of the Court, on which the motion will first be presented. In general, he must calculate a minimum of 40 days from the date on which he thinks that the other spouse will receive his motion, and choose a date after that period of 40 days. The date will be included in the Notice to Defendant as to Contestation that accompanies the Motion to Institute Divorce Proceedings sent to the other spouse. For more information on this notice, read the previous question.

It is important to understand that the presentation of the Motion to Institute Divorce Proceedings to the court is not the trial for the divorce. It is usually used to plan the next steps in the divorce process and to ensure that everything will be ready for the day of trial.

It depends on whether the spouse who received the motion appears or not:

• If the spouse appears, both spouses will try to agree on a timetable. A timetable is a sort of calendar indicating what needs to be completed by each spouse and when it must be completed (for example, the preparation of legal documents, obtaining an expertise, examinations, etc.). It serves to ensure that the file will be ready for the day of the divorce trial. If the spouses are unable to agree, they can ask the judge to decide their timetable.
  
  Note that the law encourages spouses to agree on the timetable before the date of presentation of the motion.
  
  
• If the spouse does not appear, the spouse who made the
  Motion to Institute Divorce Proceedings, or his lawyer may note the absence of the other spouse by the officer of the Court (special clerk). If the file is ready, it is possible to request a judgment in the absence of the other spouse*.
  
  *(Practices differ depending on the courthouse. Get informed!)

The final trial judge is not bound by the safeguard orders and the judgments made on provisional measures by other judges before him. He can make a completely different judgment on the same issues. However, be aware that in practice, judges tend to give much weight to the judgments made in the past by other judges.

The judge for the divorce trial makes a final decision on the issues that you raised in your Motion to Institute Divorce Proceedings (and your spouse’s Cross Demand, if applicable). For example:

• divorce (grant or refuse to grant a divorce)
  
• child custody and access rights
  
• child support
  
• spousal support
  
• division of the family patrimony (the family property)
  
• the end of the matrimonial regime (other property)
  
• the granting of a compensatory allowance
  
• the granting of a lump sum
  
• gifts in the marriage contract
  
• etc.

The final trial takes place like any other trial. Each spouse may testify, call his witnesses and cross-examine the other spouse’s witnesses. The evidence in the file is examined by the judge. Each spouse may submit the laws and decisions made by other judges in cases similar to theirs, which are favourable to him. Their meaning and relevance will be debated.

The judge may make a decision immediately (on the bench) or take time to reflect. You will get the final judgment within a maximum of six (6) months.

You have 30 days from the final judgment to file an appeal, if you are not satisfied with one or more of the decisions it contains.

If there is no appeal, the divorce takes effect on the 31st day following the date the court rendered its decision and a divorce certificate is then issued.

Be careful! The part in the "final" divorce judgment that deals with custody of children, access rights and support may be reviewed by the court if there is an unforeseen and significant change in circumstance.

Firstly, if you have no income or too little income, you can make an appointment with the Legal Aid office in your area to verify your eligibility for legal aid. You can find their contact information in the yellow pages of your telephone directory or on the website of the Legal Services Commission.

After analyzing your financial situation, they will inform you whether or not you qualify to get free services from a lawyer.

You can also consult a private lawyer and get legal advice on the possibility of getting your spouse to pay for your lawyer, in whole or in part (called "provision for costs"). Of course, your spouse must have enough money to pay for your lawyer and his own, in addition to his other financial obligations.

Know that many arrangements are possible with lawyers in private practices. Some allow their customers to pay by monthly instalments. Others accept payment at the end of the process, especially if it is clear that you will receive a significant sum of money at that time. Ask around.

Finally, you can determine the exact mandate that you want to give your lawyer. For example, you can consult a lawyer to find out about your rights and obligations, taking into account the specifics of your individual situation. Then, you can ask that lawyer to draft the necessary paperwork to begin the divorce process (or to defend you), stating that you want to represent yourself thereafter.

You can also mandate a lawyer to act as your advisor. The lawyer can give you information on how to complete the paperwork or tell you what you need to do in court.