Who Should File First When Getting Divorced?
Is There an Advantage to Filing First?
One of the most commonly asked questions about divorced is whether someone should file for divorce first or wait for their spouse to file. While you don't always have a choice, we generally believe that if you can file first, you should. Divorce is never easy, but when you file first, you retain a bit more control over the process. This can help you feel more confident as you move forward with your case. However, being in control isn't the only benefit of being the one to file for divorce first.
Perhaps the two greatest benefits of filing for divorce first are the:
- Financial benefits
- Legal benefits
Below we review the financial and legal benefits of filing for divorce first, as well as some tips on selecting the right legal counsel.
When you file for divorce first, you can plan ahead and hire the people you need to support you through the process. If your spouse files first, you are left in a reactionary position, and you may find that you don't have the time to research and hire the right professionals and legal team. This may mean that you spend a lot of money on things (and professionals) you don't need or who you aren't happy with, only to fire them and hire new people.
Filing first can also help protect you from a spouse you worry will try to hide assets or misappropriate marital funds. Instead of waiting for your spouse to initiate the divorce, you can work proactively to collect all important financial documents and get a clear accounting of your financial assets, including property, retirement accounts, credit card statements, insurance policies, and more. The more information you have about your financial life, the less of a chance your spouse has to steal or hide assets that rightfully belong to you.
The first legal benefit you have when filing first is that you get to choose where you file. Many couples are separated before filing for divorce and may be living apart. If this is the case, you can file for divorce in a location that is convenient to you and where you live, whether that be a different county or state than where your ex lives.
Additionally, with the choice of where to file, you can select the location with the divorce laws that will be most favorable to you. This is especially true if you and your spouse live in different states. For example, some states have radically different child custody, child support, and spousal support laws. When you are the one filing, you can take these things into consideration as opposed to being stuck with wherever your spouse chooses to file.
Are There Any Downsides to Filing First
As you can see, there are many benefits to being the first to file for divorce. However, there are some potential drawbacks. For example, by filing first, you may be the first person to present your case if your divorce has to be litigated. This is not always a bad thing, but it does reveal your strategy to your former spouse, giving them a chance to adjust their own strategy. Furthermore, if you have moved far away from your former spouse and choose to file for divorce in your current location, this can make serving divorce papers to your spouse more difficult.
Before you file for divorce, you should always speak with an experienced attorney, like ours at the Law Office of Alexandra White, PC. We can review your situation, discuss your goals, and help you determine if it makes sense for you to file first or if you should wait for your spouse to file.