To Achieve a Joint or Amicable Divorce: The Essential Points on Which to Agree


August 21, 2019 Family Law

Mtre Johara Obaïd 

Are you recently separated from your spouse and want a divorce? Do you want to know where to start to see if an amicable agreement is possible? Do you prefer to settle the terms of your divorce amicably with you spouse in order to avoid it degenerating into a legal battle that can be long and costly, both financially and emotionally?

This article provides a list of issues to be discussed and on which common ground will have to be found in order to consider a joint or amicable divorce. This list, while not exhaustive, will give you an idea of the issues to be resolved in order to reach an agreement that can then be submitted to a lawyer to be drafted, signed, and confirmed by the court.

1. Have you just broken up, but are still living together under the same roof?

The Divorce Act stipulates that divorce can be granted after one year of separation. This means that the sooner you separate and one party leaves the family residence, the sooner you can get a divorce judgment. Divorce proceedings can, however, be initiated before the one-year separation period has elapsed, but the divorce may not be granted before the end of said year.

Are you still living under the same roof? It will then be necessary to agree upon who is to leave the family residence and who is to remain in the family residence. One of the parties may leave the family residence and leave its use to the other party during the divorce proceedings. An agreement will also have to be reached on the matter of rent or mortgage payments until one of the spouses takes over the lease alone, or until the family residence is sold or redeemed by one of the spouses, as the case may be.

2. Do you have a family residence?

The family residence is part of the family patrimony. When the spouses co-own an immovable, a solution must be found as to who will keep ownership of the family residence and the cost of its redemption, or rather, whether it is to be put for sale.

Remember that even if a residence is owned by only one of the spouses, the other spouse risks having a claim on part of the value of the immovable, namely under the rules on family patrimony. Do not hesitate to ask your lawyer the amount to which you or your spouse may be entitled in relation to the family residence.

3. How do you partition the secondary residence, the movables, and the property used by the family?

The way in which the secondary residence, the automobile used by the family, and the movables furnishing these two residences are to be partitioned will have to be discussed. In calculating their shareable values, it is important to remember to deduct the debts on these assets and to keep their current market value in mind and not their purchase cost. For example, the balance of an automobile loan on the date of separation must be deducted from the current market value of the automobile used by the family.

4. Do you have children?

An agreement will have to be reached as to the type of custody schedule that best suits your children’s interest. Shared custody with one week with each parent on an alternating basis could be an option. Sole custody for one parent with the other parent having access to the children is also an option.

Most importantly, a practical and realistic schedule must be established, taking into account, among other things, the distance between the two parents’ domiciles, the commute from said domiciles to the children’s schools, their extracurricular activities, the space available for the children in each dwelling, each spouse’s parental capacity, etc.

It is also important to note that the amount of child support is based on each parent’s revenue, childcare expenses and specific child expenses, as well the percentage/proportion of each parent’s custody of the children. Your lawyer can, based on the above information, tell you the exact amount of child support to be paid using a specialized form.

Other organizational details and some pre-emptive authorizations should be discussed, including issues like custody during vacation and the holidays, the location where the parents will routinely transfer the children to the other parent’s care, and authorizations to travel outside of the country.

           5. The case of spousal support

The law also provides for the possibility of a spouse who contributed to the marriage through his or her work in the home to claim support for themselves. If one of the spouses is financially in need following the breakup, often due to the role he or she played during the marriage (for example, one of the spouses set aside his or her professional career in order to devote that time to taking care of the family, which caused said spouse to become financially dependant on the other spouse), then the more financially comfortable spouse may be obliged to pay support to the economically disadvantaged spouse. The period of time during which support payments will have to be paid will often depend on the duration of the marriage and the time required for the financially dependent spouse to achieve a reasonable degree of financial autonomy.

In such a situation, the spouses will have to agree upon the amount payable to the other spouse based on the payer’s means and the recipient’s needs, while remembering that spousal support is taxable for the recipient and tax deductible for the payer. Guidelines are also available to provide an idea of the amount that should be paid.  Feel free to inquire with your lawyer as to the amount of support suggested under the guidelines.

6. The fate of pension funds, RRSPs, and pension plan earnings

It will also be important to discuss the fate of pension funds accumulated with an employer and registered retirement savings plans, with the amounts accumulated during the marriage being divided in half.

As for the spouses’ earnings under the Quebec Pension Plan (QPP) or under an equivalent plan, it is possible to ask the organization managing the earnings for a simulation of a possible partition in order to know the exact amount that would be transferred from one spouse to the other in the event of such a partition.

One spouse’s explicit written renunciation to his or her share in the other’s pension plan is also possible in the context of a joint divorce, if an agreement is reached on the matter. In such a case, and if the spouses agree, each spouse would keep his or her pension fund, RRSP, and earnings registered under the Quebec Pension Plan (QPP) or an equivalent plan.

7. The matrimonial regime: investments, businesses, and income properties

A different calculation applies to the property that makes up the matrimonial regime. First of all, the applicable regime must be determined according to the marriage contract, if there is one, the date of marriage, the place of the marriage, and the spouses’ intentions to move to Quebec if the parties were married outside of the province.

In the absence of a marriage contract or one of the spouse’s explicit renunciation to the other’s property, you will have to negotiate over all the property acquired by either spouse during the marriage, including, among other things, businesses, investments, bank account balances at the time of separation, income properties, collectibles or works of art, etc.

A lawyer can help you with the rules applicable to the property that makes up your matrimonial regime and draw up a list of said property, including their value for the purpose of partition.

8. Do you have family debts?

Finally, an agreement must be reached as to the debts incurred for the family’s regular needs. Normally, family debts are divided into equal shares, but these debts must have been contracted for the family’s needs and not for one of the spouse’s personal reasons.

If the spouses have reached a general agreement on these issues, a lawyer may draft a final agreement on the divorce and thus file joint proceedings for the two spouses for the court to grant a divorce. If there are still points to negotiate, family mediation can be a valuable tool for finalizing the agreement.

Of course, the Act provides for other financial situations and mechanisms for addressing the injustices and consequences of a marriage’s breakdown. Do not hesitate to consult your lawyer on the matter.

This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.

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