Divorce - Filing for in Nova Scotia
Can't find what you're looking for? For more Questions & Answers about divorce, go to nsfamilylaw.ca!
Q- What court do I use to get a divorce?
In the Halifax Regional Municipality, and Cape Breton, you petition or apply for divorce at the Supreme Court (Family Division).
In all other areas of Nova Scotia, you petition or apply for divorce at the Supreme Court.
The rules, forms and procedures in the Supreme Court (Family Division) are different from those in the Supreme Court. Go to nsfamilylaw.ca/separation-divorce/divorce/forms for information about forms you need for a divorce.
You'll find court contact information online at courts.ns.ca/justicecentres/justlocations.htm, or look under 'Courts' in the government section of the phone book.
Q- What's the difference between a contested divorce and an uncontested divorce?
A divorce is contested if one spouse disagrees with the other on the grounds for the divorce, or on custody, access, support, or division of property and debts. A contested divorce requires a trial before a judge, who will decide whatever issues the spouses cannot agree on. A contested divorce, or one that might be contested, must be started using a Petition for Divorce.
An uncontested divorce is one in which the spouses agree on the grounds for the divorce (for an uncontested divorce, this must be one year's separation) as well as custody, access, support, division of property and debts. The spouses file the necessary forms with the court and a judge reviews the forms in his or her office. There is usually no need for a court hearing. Uncontested divorces are started by application, either a Joint Application for Divorce or an Application for Divorce by Agreement.
For more about the different ways to apply for a divorce (petition or application), and the difference between a contested and uncontested divorce, go to nsfamilylaw.ca.
Q- I don't like the idea of petitioning my spouse for divorce. I want us to do it together. Is this possible?
Yes. If you have a written agreement on everything relating to your divorce you can apply for an uncontested divorce together as 'joint applicants'. This is called a Joint Application for Divorce. A written agreement may be a Separation Agreement (see the page on separation), or a Corollary Relief Order that you both sign to show you are agreeing to its terms.
If you decide to apply for a divorce as joint applicants, you do not have to serve the Joint Application for Divorce on your spouse, since he or she is co-signing the application.
For more about the different ways to apply for a divorce, and the difference between a contested and uncontested divorce, go to nsfamilylaw.ca
Q- Can either spouse petition or apply for divorce?
Either spouse can petition or apply for divorce based on one year's separation. Only a spouse who did not commit adultery or cruelty can seek a divorce on the basis of adultery or cruelty. You can file for divorce in Nova Scotia if either you or your spouse has lived in Nova Scotia for at least a year immediately before you file for divorce.
The spouse who files the Petition for Divorce is called the petitioner. The other spouse is called the respondent. Spouses who apply for a divorce by Agreement are called the applicant and respondent. Spouses who make a Joint Application for Divorce are both called applicants (applicant and co-applicant, or 'joint applicants').
Go to nsfamilylaw.ca for information about the difference between:
applying for a divorce.
Q- How do I get an uncontested divorce?
An uncontested divorce is one in which the spouses agree on the grounds for the divorce (usually one year's separation) as well as custody, access, support, division of property and debts. The spouses file the necessary forms with the court and a judge reviews the forms in his or her office. There is usually no need for a court hearing.
Even for an uncontested divorce there are many steps involved and the process can be complicated. You should consider hiring a lawyer to do this for you. If you cannot afford a lawyer, it is possible to prepare the necessary documents yourself, but representing yourself in any court proceeding, even an uncontested proceeding, has its risks. Your divorce will have a permanent impact on your life, including your rights and obligations. Judges and court officers cannot give you legal advice. Make sure you understand the risks involved before you decide to do-it-yourself.
If you do decide to do-it-yourself, an uncontested divorce may be started by filing:
1) an Uncontested Motion for Divorce. This is used when a divorce petition was filed, the respondent did not file an Answer to the Petition, and now the spouses want an uncontested divorce.; or
2) an Application for Divorce by Agreement; or
3) a Joint Application for Divorce.
You should speak with a lawyer if you are not sure which of these ways to choose. For more information about applying for an uncontested divorce, go to nsfamilylaw.ca
Q- Where can I get a Do-it-yourself divorce kit and divorce forms?
Do-it-yourself divorce kit: The forms are available from the court with a brief instruction book from the Supreme Court (Family Division) in the Halifax Regional Municipality and Cape Breton, and from the Supreme Court elsewhere in Nova Scotia. There is a small fee for this kit (about $25). Visit www.courts.ns.ca for court contact information, or look under 'Courts' in the government section of the telephone book;
- Divorce Forms: Go to nsfamilylaw.ca/separation-divorce/divorce/forms for help figuring out which forms you need. The divorce forms come from Nova Scotia's Civil Procedure Rules, which are court rules created by judges. The rules and forms are on the Nova Scotia Courts' website. The forms are interactive, which means you can fill them out on your computer and then print out a hard copy to file with the court. The interactive forms also have helpful tips about what to put in the blanks. The interactive forms are on the Nova Scotia Courts' website at courts.ns.ca. To find the forms:
- In the Halifax Regional Municipality or Cape Breton: Look at Rule 59 - Family Division Rules (and accompanying forms), which apply to a divorce in the Supreme Court (Family Division).
- Outside the Halifax Regional Municipality or Cape Breton: Look at Rule 62 - District Family Rules (and accompanying forms), which apply to a divorce in the Supreme Court of Nova Scotia.
- You can hire a lawyer to prepare the forms for you. If you already have a signed separation agreement, this should not be very expensive.
If you decide to complete the documents yourself, you should try to have a lawyer review them before you file them with the court. Check out the family law help page for further sources of help.
File the necessary documents with the court and wait for the court to grant your divorce. This usually takes at least a number of months, so do not schedule a wedding until you have your Certificate of Divorce! When the court grants your divorce, you must wait 31 days from the date on your Divorce Order. This is the appeal period. If neither spouse appeals, you will then get a Certificate of Divorce from the court - it will be mailed to you after the appeal period is over. You will need the Certificate of Divorce to remarry.
Make sure you have divided all of your property and review your financial affairs in light of your divorce. Read the After the Divorce is Final section of this website for more information.
Q- I need help with the forms. Where can I go?
- In some parts of the province you can meet with a Nova Scotia Legal Aid Summary Advice Lawyer at the court. The Summary Advice Lawyers provide brief , basic legal advice free of charge. Go to nsfamilylaw.ca/services/getting-legal-advice-finding-lawyer#815 for contact information.
- The Family Law Information Centres (FLICs) at the courts in Halifax and Sydney offer free Do-it-Yourself divorce workshops. Contact the FLIC in Sydney at 563-5761 or in Halifax at 424-5232 for further information.
- Check out the Family Law Help page of this website for other possible sources of help. Remember: court staff, LISNS staff and other non-lawyer service providers cannot give legal advice. Only a lawyer can give you legal advice.
- A lawyer. Go to 'Where can I find a lawyer' below for help finding a lawyer.
Q-How long will it take to get an uncontested divorce?
It depends. Either spouse may file for divorce as soon as you separate, but a court will only grant a divorce after you have been separated for one year, unless the spouse seeking the divorce can prove the other spouse committed adultery or intolerable cruelty.
It often takes 12-18 months for spouses reach agreement on all of the issues relating to their separation, such as custody, access, support, and division of their property and debts. Some spouses reach agreement sooner than this; others take longer.
Once you and your spouse have been separated for a year, and have reached agreement on all issues, you can apply for an uncontested divorce. Even if you fill out all the forms correctly and provide all of the necessary information, it may still take months for the court to process the forms and grant an uncontested divorce. You should contact the court to find out how quickly uncontested divorces might be processed, and do not make wedding plans until you have your Certificate of Divorce.
Once the divorce is granted, it does not become final until another 31 days have passed. The court will then issue a Certificate of Divorce. You will need a Certificate of Divorce if you want to remarry. The total amount of time is usually around 18-24 months.
Q-How much does it cost to get an uncontested divorce in Nova Scotia?
If you and your spouse have already agreed on everything and you decide to hire a lawyer to provide independent legal advice and prepare a separation agreement and the necessary forms, you can expect to spend about $1,500.00 - $3,000.00 for legal fees plus $200.09 to file a Joint Application for Divorce or Application for Divorce by Agreement and $28.75 for a Law Stamp. There will also be some office expenses (photocopies, postage, couriers, etc.), and there may be a fee for having your spouse served with the divorce documents. These expenses are called disbursements.
Generally, it costs more to hire a senior lawyer than a junior one. If you are concerned about the cost, ask about the lawyer's hourly rate, and whether there is a junior lawyer at the firm who can help with the paperwork to save money.
In addition to this, the other spouse will need to obtain independent legal advice from a different lawyer. If the separation agreement is fair to both spouses and no major changes are necessary, this will cost a few hundred dollars.
Contested divorces will cost much more.
Q- I can't afford the court filing fees. Is there a program to help me?
Yes. Low income Nova Scotians can ask the court for a Waiver of Fees application. You will need to provide proof of your income.
Q- Can I get my spouse to help me pay for an uncontested divorce?
In an uncontested divorce, usually each spouse pays his or her own legal costs. The applicant pays the court filing fees and other court-related costs. Sometimes spouses agree to share these costs.
Q- How long will it take if my divorce is contested?
The vast majority of spouses are able to eventually settle their divorces without the need of a trial, but even where spouses are able to settle all of the issues arising from their separation, it can take 12-18 months to do so. If a divorce trial is necessary, it will probably take two or three years to finalize your divorce.
Q- How much does a contested divorce cost?
The overall cost is entirely dependent on how reasonable the spouses are with each other and how complicated the issues are. If both sides hire lawyers and reach agreement quickly, it may only cost a few thousand dollars each for legal fees. If one or both spouses are unreasonable, or if there are complicated issues to resolve, it may cost each spouse $5,000.00 or more in legal fees even if the spouses eventually reach agreement. If the spouses cannot reach agreement and a divorce trial is necessary, it will probably cost each spouse a minimum of $5,000.00 and can cost $20,000.00 or even $40,000.00+ in complicated cases. These are general figures. You should ask your lawyer for an estimate as to how much your divorce will cost.
It costs $283.05 to file the Petition for Divorce to start a contested divorce, and $28.75 for a law stamp.
Q-I was married outside of Canada. Can I get divorced in Canada?
Yes. You can file for divorce in a province if either you or your spouse has lived in that province for at least a year immediately before you file for divorce. You will need to obtain an original marriage certificate from the place you married.
Q- I just moved to Nova Scotia. Can I file for divorce here?
You can file for divorce in Nova Scotia if you or your spouse has lived in Nova Scotia for at least a year. If you just moved to Nova Scotia from another province, and your spouse has lived in his or her province for at least a year, you can ask your spouse to file for divorce in the other province instead. This 'residency' rule applies across Canada, as it is part of the federal Divorce Act.
Q- I don't know where my spouse is. Can I still get a divorce?
Yes. First you should do everything you can to find your spouse. For example, you might:
- contact friends or relatives to try to locate him or her;
- contact companies that specialize in locating people in order to give them documents. Look in your Yellow Pages under Tracing Bureaus or Bailiffs;
- perform internet searches;
- inquire at your spouse's recent residence(s) or place(s) of work;
- hire a lawyer, process server, or private detective.
Go to nsfamilylaw.ca for more tips.
Keep records of the steps you take to locate your spouse. If you still cannot locate your spouse, you can apply to a judge to ask for an order for substituted service, allowing you to notify your spouse in a way other than personal service. This is a court order that tells you what you must do to make sure your spouse is aware that you have filed for divorce, such as having the divorce documents delivered to someone (for example, your spouse's parents) you know is likely to be in touch with your spouse. The judge will want to know that you have made every reasonable effort to find your spouse before he or she will grant an order for substituted service.
Go to nsfamilylaw.ca for more information about service (notifiying your spouse of the divorce) or applying for substituted service.
You should speak with a lawyer to get legal advice about how to apply for an order for substituted service.
Q- My spouse and I want to try to make our marriage work. Can I put the divorce on hold?
Yes. Divorce law encourages spouses to reconcile (get back together) if at all possible.
An application or petition for divorce expires six months after the day it is filed with the court, unless the respondent is notified of the divorce petition or application within that time, or the court extends the time for notification.
You can get back together any number of times without affecting your date of separation as long as the total number of days that you live together as spouses does not exceed 90 days. If you get back together for more than 90 days and then file for divorce again, your separation date changes to the date your last reconciliation ended. A change in your separation date may affect your division of property as well.
You can find a marriage counsellor or family therapist by looking in the Yellow Pages under Marriage, Family and Individual Counsellors, or Psychologists.
Q- My spouse and I just got back together. Can I cancel the divorce?
If your divorce was finalized you cannot cancel or revoke it, but you can re-marry.
If the divorce is not final, in most cases the petitioner or applicant can stop the divorce by filing a notice of discontinuance with the court, and delivering the notice of discontinuance to the respondent. If you discontinue the divorce and later decide to restart it, you will need to issue another petition or application for divorce and pay the fee again.
Q- Can I ask the court to change my name?
Yes. Your petition for divorce or affidavit supporting an uncontested divorce should indicate that you are seeking a name change and the new name you want to use. Your Divorce Order should contain a paragraph relating to the name change. See the specific forms for more details.
You can return to using your unmarried name or a previous married name at any time, without waiting for a court order.
After you change your name, you will need to change your identification and inform all of the government offices, agencies, and businesses you deal with. If you changed your name in your Divorce Order, you can show a copy of the Divorce Order as proof. If you changed your name informally, you can use your birth certificate or previous marriage certificate as proof of your previous name.
For more information about name changes go to LISNS 'Changing Your Name' page, and nsfamilylaw.ca
Q- I want to change my children's names, too. How do I do this?
In an uncontested divorce, the court will only change your children's names with the consent of both spouses. You will need to obtain a written consent from your spouse and file it with the court. You should also include a paragraph in your divorce documents indicating what the children's names are, what you want the names changed to, and confirming that both spouses consent to the name change.
If the court orders the children's names changed, the custodial parent should inform the children's schools, doctors, and other organizations of the change.
For more information about name changes go to LISNS 'Changing Your Name' page, and nsfamilylaw.ca
Q- Where can I find a lawyer?
To find a lawyer, you can:
ask a friend or family member for a referral;
contact the Legal Information Society's Lawyer Referral Service at (902) 455-3135 or toll free at 1 (800) 665-9779;
look in your Yellow Pages under Lawyers - look under family law; or
call a law office that does family law; or
- go to nsfamilylaw.ca - the page on getting legal advice; or
Q- I can't afford a lawyer. What other options do I have?
You may qualify for legal aid.
If you have no or a low income you may qualify for legal aid. Contact your local legal aid office for an application. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia, listed under 'Legal Aid' in the white pages and government section of the telephone book, or visit Nova Scotia Legal Aid's website at: www.nslegalaid.ca
Your lawyer may accept alternate billing arrangements, or may be willing to just work on part of your case.
If you have no extra money, but you and your spouse own property, such as a home, investments, or RRSPs, some lawyers may agree to be paid at the end of your case, when you receive your share of the family property.
Also, some lawyers may consider helping you with just part of your legal issue - for example, preparing an affidavit or examining a witness in court. This is sometimes called providing 'unbundled' legal services.
The Legal Information Society of Nova Scotia offers a Lawyer Referral Service where you may be able to arrange a 30 minute meeting with a lawyer for $20.00+HST. This will give you an opportunity to ask some questions and perhaps arrange to pay for additional time, as required.
You can represent yourself.
You can represent yourself and complete the required forms to obtain a divorce. You will find more information about forms required for a divorce in Nova Scotia online at nsfamilylaw.ca/separation-divorce/divorce/forms. The forms come from Nova Scotia's Civil Procedure Rules, which are available on the Nova Scotia Courts website in interactive format. This means you can fill out and save the forms on your computer, and then print out a hard copy to file with the Court. You can't file the forms electronically - it must be done in person. The interactive forms also have helpful tips about what to put in the blanks. The Civil Procedure Rules and forms are also available on the Nova Scotia Barristers' Society website at nslaw.nsbs.org/nslaw/forms.do
A Do-it-Yourself divorce kit is available from the Supreme Court (Family Division) or Supreme Court. There is a small fee for the kit. Contact your local court for further information. Courts are listed in the government section of the telephone book under 'Courts', or visit the Nova Scotia Courts' website at www.courts.ns.ca for court contact information.
If you decide to represent yourself, you should still ask a lawyer to review the forms before you file them with the court. See Where can I find a lawyer? above for ways to get legal help.
Whatever option you choose, you should inform yourself about family law in Nova Scotia. To get more information about family law in Nova Scotia, you can try the following resources:
Be careful before relying on information from websites or books from other provinces or from the United States. American law does not apply in Canada. Canada's Divorce Act is a federal law that applies across the country, but family law differs from province to province, especially on property rights. You also need to consider when a website or book was last updated. Laws change and information can go out of date quickly. Ask a lawyer if you are uncertain.
Updated March 2013