How Do I Obtain a Desk Order Divorce?
Melissa Salfi, family lawyer, mediator, fertility lawyer
Getting a divorce from the court can be a straightforward family law process if you and your ex agree on everything and if you have the time to do all the paperwork yourself.
A desk order divorce, also known as an uncontested divorce, is a process that allows you to apply for a divorce in the Supreme Court of British Columbia without appearing before a judge. You can apply for a desk order divorce once your other family law issues such as parenting time, child support and property division (“corollary relief”) are settled, or if you do not have any children or any support/property issues to resolve.
There is an option to file the application on your own or to file it jointly with your spouse, however the second option can result in a conflict of interest if you are using lawyers and it is therefore not as common. Since lawyers primarily use the first option, I set out the steps we follow below:
Step 1 – File Notice of Family Claim
To commence a court proceeding for divorce, you need to complete a form called a Notice of Family Claim in which you set out the orders you are seeking (in this case only an order for divorce) and the grounds on which your claim is based (e.g. being separated for at least one year). You will also be asked to provide information about yourself, your spouse, children, marriage, and separation. Once completed, the Notice of Family Claim must be filed in Court along with your original marriage certificate.
Step 2 – Serve Spouse
To provide your spouse with formal notice of the divorce proceeding, you must arrange for your spouse to be personally served with the Notice of Family Claim. Service must be performed by someone who is over 19 and someone other than you. The best option is typically to use a process server as you will need to provide proof of personal service to the Court in the form of a sworn statement, called an affidavit. Specifically, the person who serves the Notice of Family Claim must swear an Affidavit of Service.
Step 3 – Wait 30 Days
Your spouse will have 30 days to respond to your Notice of Family Claim in the event that they do not agree with the claim for divorce or wish to make their own family law claim (“a counterclaim”). If your spouse does not respond after 30 days, you can proceed with filing the next court documents to obtain the divorce order. If your spouse responds, your divorce will be deemed contested and you will not be able to obtain a desk order divorce order until you resolve the contested matters.
Step 4 – Apply for Divorce Order
If the 30-day period passes without your spouse filing a response, you can apply for a divorce order on an uncontested basis. At this stage you will need to file more documents, including:
A draft divorce order
The affidavit of service
An affidavit in support of the divorce
A child support affidavit if you have children (to provide information about parenting and support arrangements)
A certificate of pleadings
A copy of your separation agreement (if applicable)
There are also filing fees associated with each filing stage. While the process may sound relatively straightforward, the Court regularly rejects divorce applications for various reasons including procedural errors, incomplete forms, improper language, incorrect support calculations, and for other technical reasons.
Also, if you have not put forth appropriate plans for child support if you have children, your divorce application will be rejected.
The family lawyers at Crossroads Law regularly assist clients who come to us with rejected applications for divorces. In most cases, it is easier and less expensive to assist clients with an initial application or divorce, which we offer at a flat rate, than correcting a rejected application.