Should you file for divorce first?
When marriages begin to fall apart, most spouses know that something is wrong. However, many spouses are hesitant to be the first one to file for divorce. Some are unsure about whether divorce is really the solution, others may wonder if they are being hasty and still others may just not know how to proceed. While people’s hesitation to file divorce is understandable, people considering divorce should be aware of the potential benefits that accompany being the first spouse to file for divorce.
Financial benefits of filing for divorce first
Being the first spouse to file divorce means that a person can begin the proceedings at a time when he or she is financially prepared to do so. A person would have had time to collect copies of all important legal documents, such as deeds, bank and investment account statements, wills, life insurance policies, social security cards, titles to property. They will need these papers as part of the property division process, and it may be more difficult to obtain copies after the divorce starts. Also, a person can assess the family finances and determine the extent of their assets and debts, so they will have an accurate idea of what will be divided in the property division.
People filing for divorce first also have the advantage of doing so after they have ensured that they have access to money and credit to meet their needs during the divorce process.
Possible legal benefits of filing first
One of the main legal advantages that a person gains by filing the divorce petition before his or her spouse does is that the filer can request a Standing Order from the court when filing the petition. Such an order prevents either spouse from making changes to beneficiaries on policies such as life insurance or retirement accounts, selling, borrowing against or transferring property, changing bank accounts and other similar financial moves. This can be important if the spouse filing divorce suspects that the other spouse will attempt to hide assets.
The person who files for divorce also chooses the jurisdiction in which they litigate the divorce. In situations where spouses have lived apart from each other for a substantial period of time, possibly great distances from each other, filing the divorce petition first can prevent having to conduct matters related to the divorce far away from where a person lives.
If the matter should go to a hearing, the person who files the petition usually presents his or her case first. This can be a drawback for a spouse if he or she does not wish to reveal his or her strategy to the other spouse. The other spouse then has the opportunity to adjust the presentation of his or her case after seeing the other side.
Talk to a lawyer
Many people become paralyzed by indecision when faced with such a monumental question as whether to file for divorce, or just wait until their spouses file first. This is not a decision that a person should make without gathering all the information possible. Those who feel their marriages are coming to an end should speak with a seasoned divorce attorney who can discuss their specific situations with them and help them decide the best way to move forward.
Surprise, I’m Divorcing You
Not everyone sees the divorce coming. Surprise can be unsettling and may give you an advantage. You have had time to plan, hire a divorce attorney, open new bank accounts, apply for new credit cards, plan where you would live, plot out custody schedules, etc. You have a head start. Plus you are mentally prepared.
When divorce papers are filed, the court orders a Joint Preliminary Injunction (JPI). A JPI prevents either spouse from selling or encumbering assets. Basically a JPI prevents either party from making any unusual financial moves without the court’s permission. You, with your planning, already made your moves.
Your divorce team can be lined up in advance, and without interference.
Achieving the best possible outcome from a divorce requires a team of qualified experts on your side. Filing first means you can take the time to interview and retain the right people. You know you’ll need an excellent divorce attorney, and in financially complex divorces, it’s also essential to have an experienced divorce financial planner on your team. In addition, I recommend a compassionate therapist to help you cope.
Being able to interview/consult attorneys first can also protect you from the possibility that your husband could “conflict out” the best lawyers in your area. All he’d have to do is meet with each one just long enough to establish an attorney-client relationship, after which they would be prohibited from representing you.
The Disadvantages of Filing First
Like many things, there are also negatives to filing for divorce first. It depends on your situation because every relationship is different. However, some disadvantages of filing first revolve around money and strategy.
- You Alert Your Spouse to Your Demands –When you petition for a divorce, you usually have to list your desires or demands. The other party sees this at the time they are served. This allows them to know exactly what you want and come up with a counterattack.
- Sometimes Pay More Fees – The individual who petitions for a divorce first might have to pay the filing fees. Because you go first, you may also have to pay more in attorney fees if your lawyer is busy gathering information.
- Set Forth the Dissolution of Marriage – If you and your spouse are discussing divorce, you make it solid by filing for it. Usually in these cases, there is little chance of reconciling, since one party has already made the move.
Legal Advantages of Filing First
Filing first lets you choose where your divorce will be adjudicated.
Divorces are generally decided in the jurisdiction in which they are filed. If you and your husband have already separated and live in different counties or states, or if you spend equal time at homes in Connecticut and New York, for example, it is worth your while to check into the legal implications of filing in the different venues legitimately available to you. State laws can be widely different regarding such crucial considerations as child custody customs and division of marital assets, including whether or not an ATRO is part of the process. Your experience and expected outcome might vary widely in different jurisdictions. Do your research, and consult with attorneys wherever you might file.