In order to obtain a divorce, spouses must wait a year from the date of separation or proceed sooner on the basis of adultery or cruelty.

Typically spouses obtain a divorce after all of the other issues arising from their separation have been resolved. They will negotiate a contract called a Separation Agreement which sets out who will keep what property, who will pay any debt, where the children will reside and any monthly spousal maintenance or child maintenance payments. Once the Separation Agreement is signed they can then apply for an uncontested divorce.

Sometimes a spouse wants to obtain a divorce before all of the issued regarding property and maintenance have been resolved. In order to grant a divorce the judge must be satisfied that the spouses have made proper arrangements for their children including child maintenance being paid pursuant to the Federal Child Support Guidelines. Once satisfied that the children are cared for the court may grant a divorce prior to the property issues being resolved. An example of when this may be pursued is if one spouse is anxious to remarry and requires a divorce in order to do so.

There can however be reasons not to pursue a divorce prior to the division of property. If the spouses own shares in a corporation the corporate ownership should be resolved prior to the divorce in order to avoid adverse tax consequences resulting from the disposition of the shares. Another reason not to obtain an early divorce is that often a spouse’s entitlement to benefits from the other spouse’s medical and dental insurance may survive separation but end on divorce. If the divorce is postponed, either spouse may be able to continue to take advantage of the other’s medical and dental insurance benefits.


Deborah A. Todd