Getting a court date for a divorce trial can take months or even years. But some important questions really can’t wait until then.
Issues That Can’t Wait Until the Divorce Trial
Here are some examples of decisions that might have to be made while you wait for the divorce trial:
- custody and access (visiting) rights
- child support payments
- spousal support payments, including bills and debts like mortgage payments that one spouse wants the other to pay on a temporary basis
- who gets to use the house or apartment
- who gets to use the furniture in the house or apartment
- how to keep one of the spouses safe, for example through a court order forbidding one spouse from harassing the other
Divorce: Vocabulary Change in the Law
Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. For more information, see our article Divorce: What Is “Parenting Time” and What to Do When Moving.
Court Decisions Before a Divorce Trial
A spouse who wants a court decision before the divorce trial can make two kinds of requests:
A judge will hear the request in . . .
a few days or a few weeks.
10 days, but it usually takes a few months.
A judge will hear the request if there is . . .
a need for a temporary decision before the final divorce decision.
At court . . .
There is no trial.
Since this is an “emergency,” the judge makes a decision based only on
- the documents in the divorce file, including any detailed affidavits (official written statements) by the spouses, and
- the lawyers’ explanations of these documents (or the spouses’ explanations if they are acting for themselves without a lawyer).
There is a trial.
Each spouse (or each spouse represented by a lawyer) can
- make statements in court,
- have witnesses make statements,
- file evidence,
- question the other spouse’s witnesses,
- talk about the laws that apply and decisions other judges have made in similar cases that support their cases, and
- give their opinions on what the laws and decisions mean and how they apply.
The judgment lasts . . .
six months maximum.
until the divorce trial.
Therefore, a spouse can ask for the following:
- a safeguard order to get a temporary decision concerning an emergency only
- a safeguard order and provisional measures to settle the emergency and get a decision that will apply until the trial
- provisional measures if there’s no emergency but the spouse still needs a decision that will apply until the final decision
How a Temporary Court Decision Affects the Final Divorce Decision
The judge who hears the final divorce trial does not have to follow what other judges have decided in earlier safeguard orders and provisional measures.
The judge can make a final decision that is completely different from earlier decisions on the same issues. For example, the final decision on the custody of children doesn’t have to be the same as the decision made by another judge at the provisional measures stage.
But judges usually consider other judges’ decisions