Separation and divorce
Main steps in a divorce
Are you planning to get a divorce and don’t know what to expect? Here are the main steps in getting a divorce in a “contested” proceeding, i.e., when the spouses don’t agree on all the elements needed to make a joint application. The steps are the same whether you’re represented by a lawyer or not.
Do you have urgent applications or is your ex not responding to your divorce application?
Your experience may be different based on your personal situation.
You may have to take additional steps if you have urgent applications to settle (e.g., child custody or support). Or some steps might not apply to you, for example, if your ex never shows up in court.
Other situations could change the way your divorce proceeds.
1) One of the spouses opens a case record at the courthouse
In this step, known as “the commencement of proceedings” with an “originating application,” one of the spouses (or their lawyer) must prepare the written application, called an “Application for divorce,” and gather certain documents.
The spouse then files the application for divorce and the supporting documents with the courthouse to open a case record at the court.
The application for divorce and the supporting documents must also be sent to the other spouse, by bailif. This is called “service.”
The spouse commencing the divorce proceedings is called “the applicant” or “the plaintiff.”
2) The other spouse responds to the application for divorce
The spouse receiving the application for divorce (or their lawyer) must then “file an answer,” i.e., prepare a written document indicating his or her intention to reach an out-of-court settlement or contest the application.
The answer must also include the contact information of the spouse’s lawyer, if they have one.
As a general rule, the spouse who receives the application for divorce (or their lawyer) has 15 days to file an answer, otherwise a judgment may be rendered in their absence.
The spouse receiving the application for divorce is called “the defendant.”
3) The spouses prepare the case protocol
The spouses (or their lawyers) then prepare the case protocol, i.e., the schedule of the main steps up until the hearing.
This step requires cooperation because there’s only one case protocol per file.
The spouses have three months from the notification of the application for divorce to file their case protocol with the court.
4) The defendant spouse can file their own applications (optional)
The defendant spouse can also file applications in connection with the divorce (e.g., an application for spousal support or for dividing property in a particular way.)
In this case, the defendant spouse (or their lawyer) prepares a “cross-application,” i.e., a written document outlining the defendant’s own applications in connection with the divorce.
The time limit for filing the cross-application depends on what the spouses have agreed to in the case protocol.
5) The spouses prepare their files
The spouses (or their lawyers) then “ready their case,” i.e., complete all the steps outlined in the case protocol.
For example, they must:
- send each other the various pieces of evidence and file them in the court record
- choose their witnesses
- request expert assessments, if necessary.
This step can take several months. It must be completed no later than one year after the case protocol is accepted by or established with the court.
6) The spouses choose a hearing date
When the file is ready, the spouses (or their lawyers) request a hearing date.
To do so, they must work together to complete a form called “a request for setting down for trial” and file it with the courthouse.
The spouses must submit this form no later than one year after the case protocol is accepted by or established with the court.
7) The spouses call their witnesses and gather the last documents
Calling of witnesses
Once the hearing date is set, the spouses (or their lawyer) call their witnesses to ensure they’re in court on the day of the hearing.
The official way to ask someone to come and testify is to send them a document called a “subpoena.” Although this is not mandatory, it provides greater protection in the event a witness decides not to attend at court.
As a general rule, witnesses must receive their subpoena at least 10 days before the hearing date.
Sending the last documents
During the last weeks before the hearing, the spouses (or their lawyers) might have to send each other certain documents and file them in the court record.
For example, if they filed applications for support, they have to provide documents to update their financial situation.
8) The spouses appear before a judge
The spouses then participate in the final hearing, also called a “trial.” This is when they can submit their evidence and their arguments before the judge in charge of the case.
The time period between the “request for setting down for trial” and the hearing itself can vary. Depending on the case, it can take between a week and several months. This hinges on several factors, such as the courthouse the application is submitted to and the duration set for the hearing.
9) The judge renders judgment
Once the final hearing is over, the judge can decide to render judgment immediately or defer the decision. If the decision isn’t rendered right away, it’s said that the judge “takes the case under advisement.”
When the case is taken under advisement, the judge has between one and six months to render judgment, depending on the type of applications submitted.
10) The divorce is official, but it’s not over yet...
A divorce becomes official on the 31st day after the date of the judgment. Once the divorce is official, the court sends the former spouses their divorce certificate.
Even if the judgment is rendered and the divorce is official, the legal proceedings aren’t over. The judgment will have to be “executed,” i.e., put it into action.
Depending on the situation, execution can be voluntary or forced. If it’s forced, the former spouse who wants the judgment executed will have to take certain steps.
Even if you and your ex agree to the voluntary execution of the judgment, you may have additional steps to take.
For example, you might have to:
- Contact your employer about sharing your retirement plan with your ex: Forms regarding a separation (Retraite Québec)
- Complete the forms needed to make a transfer from an RRSP: T2220 Transfer from an RRSP, RRIF, PRPP or SPP to Another RRSP, RRIF, PRPP or SPP on Breakdown of Marriage or Common-law Partnership (Government of Canada)
A “fast lane” to divorce
At any time during the judicial process, you and your ex can speak with a mediator to help you reach an agreement and settle your divorce out of court.
The process of obtaining a divorce judgment is usually faster when the spouses agree to settle out of court because they don’t have to follow many of the steps necessary in a “contested” divorce.
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ANG - L’information présente sur cette page ne constitue pas un avis ou un conseil juridique. Nous vous indiquons ce que dit la loi au Québec de manière générale. Pour obtenir un avis ou un conseil juridique concernant votre situation personnelle, consultez un professionnel du droit.
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