By Chyanne Sharma, Articled Student, Vancouver
What does it mean to get a desk order divorce? Well, it means that you are applying for a simple, uncontested divorce where you and your ex-spouse have agreed on all your separation issues and all that’s left is the divorce itself.
To process a desk order divorce, you don’t need the assistance of a lawyer. You can complete the paperwork all on your own and the best part – you don’t even have to appear before a judge! Sounds less intimidating, right? Let’s talk about how you can process your own divorce in a few simple steps.
Step 1: Preliminary Checklist
What is the divorce checklist? Before you can apply for a desk order divorce the courts will want to see that you have resolved all other matters pertaining to your separation. The best way to show this is by drafting a separation agreement and if you have children, it is important to include your parenting arrangement and child support payments. While it is not mandatory to get a separation agreement done, it is the best way to satisfy to the courts that you have resolved all outstanding matters before asking for an order for divorce. There are also a few other items that you must satisfy before getting the process started. Use this preliminary checklist to ensure you satisfy the requirements for a divorce in BC:
- A party wants to file for a divorce and the other party will not challenge the claim being made;
- You have a written agreement or court order outlining:
- Parenting
- Child Support
- Spousal Support; and
- Division of property and debt - One party has lived in BC for at least 1 year before applying for divorce and will continue to live in BC throughout the divorce process;
- You have lived separate and a part for at least one year; and
- You are not applying for divorce on the grounds of cruelty or adultery.
Step 2: Notice of Family Claim
The next step is to get started on the paperwork. Divorces can only be granted by a judge which means you can only apply for a divorce in the Supreme Court of British Columbia. A party can process the divorce as a sole application or as joint desk order divorce. We typically recommend making a sole application as joint desk order divorces are less common and can sometimes complicate the process, especially if one person changed their mind and decided to challenge the process.
The first form you need to complete is the Notice of Family Claim. What is a Notice of Family Claim? It is the document that outlines what you are looking to get from the court. If you are just looking to get a divorce, the only order you are seeking is one for divorce. Next, check off the grounds/reason you are claiming a divorce. There are three options, cruelty, adultery and being separate and apart for one year. It is very rare to get a divorce for cruelty or adultery so is best to indicate being separate and apart for one year.
The Notice of Family Claim form will ask for your particulars such as information about yourself, your partner, and children if you have any. Once you complete this form you will have to take your original marriage certificate – if it is foreign, you will have to get it translated by a professional and you will also have to complete a form called a Registration of Divorce Proceedings (Divorce Act). You can find the link for the form here. The date that the application for divorce is filed/transferred is the date that you will be going to the registry to file the application for divorce. Once you have your marriage certificate and forms, take them down to the registry, pay the fee, and have your Notice of Family Claim filed with the registry. You should make extra copies of your Notice of Family Claim before going to the registry so that you have a copy for your own records and one you can use to serve the opposing party.
Step 3: Personal Service
What is personal service? Once you have your filed Notice of Family Claim, the next step is to personally serve your ex-spouse. You’ll need an adult (someone over the age of 19) to serve/give your ex-spouse a copy of the Notice of Family Claim to them in person. You can ask a friend, a relative, or hire a process service to assist you with this step. You should not do this yourself.
Once the ex-spouse has been served, you’ll need the person who served them to complete a form called an affidavit of personal service and make sure to provide the person serving with a photo of your ex-spouse if required, to attach as an exhibit so that it can be confirmed that the correct person was served. They will also need to mark down the time, date, and location of service. Once this step has been completed, you will mark it down in your calendar for 30 days to pass. The reason for this is to allow the other party to respond to a claim, but since you are filing a desk order divorce, the other party should not be responding to your claim.
Step 4: Supporting Documents
If your ex-spouse has not responded after 30 days, you can go ahead and prepare and file the remaining documents.
For this step you’ll need to complete a few different forms, such as:
- An Affidavit for Desk Order Divorce;
- An Affidavit for Child Support, if you have any children;
- A requisition for a final order;
- A blank Certificate of Pleadings; and
- A draft final order.
When filling out your Desk Order Divorce Affidavit, you’ll need to set out the facts of your marriage and separation, and children, including the agreed upon parenting time. In your Child Support Affidavit, you’ll have to set out support payments agreed upon and you will attach any agreement relating to support payments or a court order, if you had one made. You’ll need a notary, lawyer, or commissioner to swear or affirm your affidavit(s) before you can file them, but this isn’t hard to find as the clerks at the registry are commissioned and can help you with this. Take the complete forms, along with your affidavit of personal service, and have them filed with the registry. Don’t forget! Make a copy of all your forms so that you have them for your records. There are also fees associated with filing the rest of these documents, you can find the fees applicable to the Supreme Court here.
Step 5: Wait for your Final Order
Now that you’ve submitted your documents, including the final order, all you have to do is wait for the registry to process your application. This step can take anywhere between 4 to 6 months, and it may be longer depending on how busy the registry is. While the process itself is relatively straight forward, your application can be rejected for misinformation, incorrect language, or some other procedural mishap that needs to be corrected. If this is the case, the registry will advise you on what needs to be corrected. If no corrections need to be made, the registry will enter in your final order, but they will not advise you when the order has been signed and filed. You will have to check in with them to see if your final order is ready which you can do by attending the registry yourself or calling them. Once you receive a copy, you must serve your final order on your ex-spouse by ordinary service which can be by dropping it off at their residence, mail, email, or fax.
When can I get remarried?
After your final order has been granted, your divorce will come into effect 31 days after the judge signed the order – if you were planning on remarrying, you will have to wait until the 31 days is over.
Step 6: Divorce Certificate
Congratulations! You’ve successfully completed your own desk order divorce application. Once the 31 days has passed, there is nothing further required. If you wanted a certificate of divorce, you could obtain it from the registry any time after the divorce has become final. This is not mandatory and is an optional step, your divorce is still legal and in effect even if you do not obtain a certificate of divorce.
If you are looking to process your own desk order divorce and would like some assistance along the way, Coach My Case has experienced legal coaches and legal navigators who can review your documents and help guide you during the process. Remember, just because you are completing the divorce application on your own, doesn’t mean you are in the process alone. Reach out to us today for more information on how to start your desk order divorce application. If you are in process of separating and would like more information on the next steps, read our blog What to Do When Separating.
