USA and Canada Divorce & Family Law

If you want a divorce in the USA or Canada, then much will depend on where you live. Laws which govern divorce in the USA and Canada are largely determined by state and provincial governments, rather than the federal government.

In the USA, this means that laws vary from state to state and the way that you divorce will depend on the statutes of the state or province where you live. In Canada, federal law covers all aspects of divorce, but each province also has its own act which may slightly change the process depending where you reside.

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Divorce laws in the USA and Canada

Divorce in the USA or Canada can be brought by either party and can be either:

  • Contested – where you’re unable to reach agreement. These cases normally require court intervention and court orders to determine issues such as finances and child arrangements.
  • Uncontested – where you both agree on the divorce and you can come to an agreement on issues such as your financial arrangements and child custody.

In the USA, each state has its own laws and rules for dealing with the end of a marriage and the associated issues. As each state has their own statues, there is no uniformity and the divorce process can therefore vary greatly from one state to the next.

For example, Florida deals with adultery in a different way to other states as you are sometimes able to claim additional awards based on the effect that adultery had on your children.

The rules in Canada are determined by the Divorce Act (1986), which has been amended slightly since to deal with issues such as same-sex marriage. While individual provinces have their own laws, the guidelines are the same in most of Canada (excluding Quebec).

Grounds for divorce in Canada and the US

There are generally two types of divorce in the USA and Canada: ‘no-fault’ and ‘fault’.

No-fault divorce

Under a no-fault divorce, you do not have to prove that the break-up was any party’s ‘fault’. You just have to testify that your marriage has irretrievably broken down, meaning that individuals do not have to place any blame on each other.

In 17 states of the USA, you can only file for divorce on no-fault grounds (there is no ‘fault’ option and so you can’t petition for divorce on the grounds of adultery or desertion). These states include California, Florida, Washington, Hawaii and Colorado.

Fault divorce

A fault divorce means that you have to prove that your spouse has done one of several listed things as grounds for your divorce. Grounds can include adultery, imprisonment or abandonment.

Mutual incompatibility is not an acceptable ground for a fault divorce, and even if you are both to blame then some states will want to determine which party’s conduct was the cause of the end of your marriage.

Child custody laws following divorce in the USA or Canada

Laws regarding the care of children vary between states and provinces. While the laws are similar, there are some exceptions – for example some states won’t consider a child’s wishes and feelings when awarding custody.

Here’s a summary of the approach to child arrangements in some major states:

  • California – Procedures focus on creating a ‘parenting plan’. This outlines custody details and has to be in your child’s best interests.
  • New York – Awards are based on your child’s best interests. The court will consider a range of factors including your ability to care for your child, your work schedule and your ability to cooperate with the other parent.
  • Florida – A court will consider the wishes of your child in custody proceedings, and joint custody is an option.
  • Texas – You can file a parenting plan with the court. If you don’t, the court will make a custody award.
  • Illinois – Children aged 14 or over can choose which parent to live with. However, the judge can overrule this if it is not in their best interests.

In Canada, courts will consider a range of issues when deciding on custody arrangements. Your child’s best interests will be the central consideration, and courts will consider your work schedules, parenting abilities, the relationship you have with your child and your support network. The court will also consider your child’s wishes if they are aged 12 or over.

Both Canada and the USA are signatories to the Hague Convention on Child Abduction. This means that if someone takes your child from another Convention country to the USA or Canada without your permission, agencies can work to have your child returned.

Financial settlements following divorce in the USA and Canada

If you can’t agree on financial matters during your divorce, a court will have to rule on the issue. Again, laws relating to property division differ between states and provinces.

In the USA there are 9 states (including California, Texas and Arizona) that operate a ‘community property’ approach. This means that marital property will be split 50/50 on divorce.

Canada operates a similar system and will generally split any property acquired during your marriage equally on divorce. While the laws vary between provinces, the court will order that marital property should be divided unequally only if it would be ‘significantly unfair’ to split it 50/50.

Other US states use an ‘equitable distribution’ approach. This aims to achieve fairness which may not result in a 50/50 split. A court will consider factors such as the length of your marriage, your job prospects, your children and who ‘earned’ the property.

Under both approaches, property that you acquire before the marriage will generally be kept separate from property obtained during the marriage and not shared in the divorce. Again, Canada takes a similar approach.

Some US states (including Florida) also apply an ‘economic fault’ clause. This means that bad behaviour during the marriage (for example, gambling) can result in you receiving a smaller split of any assets. This may be limited to the period during which the marriage was breaking down, or at any point during the marriage (depending on the specific state).

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