Posted on September 29th, 2024
Divorce is rarely an easy decision. Even when a marriage has been deteriorating for years, finally coming to the realization that divorce may be imminent is emotionally difficult and leads to much uncertainty. One common question our family law attorneys get is whether it makes a difference who files for divorce first. Many worry that if they think their spouse is preparing to file, they need to rush to the courthouse to gain some kind of legal advantage. The realities are very complicated. Our team at Harris Family Law Group takes a closer look.
The Dangers of Rushing to File
While it may seem tempting to try to “get ahead” of your spouse by filing for divorce first, this is often unwise. Rushing to file before you are fully prepared can backfire. This is because:
- Escalating tensions: If you run to file for a divorce without warning your spouse, this will likely be viewed as a hostile act. It will escalate tensions and conflict right from the start, setting a negative tone for the entire divorce process. High-conflict divorces take longer, cost more, and are harder on everyone involved.
- Lack of preparation: Filing for divorce should not be done on a whim or in a panic. There are many issues to think through, including living arrangements, finances, co-parenting, and more. If you file hastily without getting your affairs in order, it can weaken your position. Take the time to gather all relevant financial records, think through a parenting plan, and consult with an attorney first.
- You still have to wait: Except in cases of domestic violence, you gain no legal advantage by being the first to file. In most states, there is a mandatory waiting period before a divorce can be finalized, often 60-90 days. Even if you file first, your spouse still has the right to respond and negotiate terms. The waiting period gives you time to exchange information and work towards a settlement.
When Filing First Can Help
This isn’t to say being the first to file is never a good idea. There are some situations where it may be beneficial:
- Getting to choose jurisdiction: If you and your spouse live in different counties or states, the person who files first generally gets to choose where the case will be handled. This can impact which laws apply and how convenient the process is for you. Discuss with your lawyer if jurisdiction is a factor.
- Element of surprise: In cases where your spouse is hiding assets, filing first allows you to request a standing order from the court prohibiting either party from making big financial moves during the divorce. This can stop your spouse from dissipating assets before you have a chance to negotiate a fair split.
- Avoiding a default: If you have already been served with divorce papers, you have a limited time to file a response with the court. If you don’t, your spouse can request a default judgment, allowing them to get the terms they want without your input. In this case, you need to take action quickly.
Focusing on the Big Picture
In most cases, the party that files first has little impact on the final outcome of a divorce. Courts are required to split assets equitably and focus on the best interests of any children involved, regardless of who starts the process. Rather than worrying about a race to the courthouse, your mental energy is better spent focusing on the big picture – what you want your post-divorce life to look like and how to get there as smoothly as possible. Key steps include:
- Consulting with an experienced family law attorney to understand your rights and strategize the best approach for your unique situation. An attorney can advise you on timing, necessary preparations, and pitfalls to avoid.
- Gathering and organizing financial records, including bank statements, tax returns, property deeds, insurance policies, and documentation of debts. Having a clear financial picture will be crucial for negotiating a fair settlement.
- If you have children, start envisioning how you want to co-parent moving forward. What kind of custody and visitation schedule would work best for your kids? How will you handle holidays, birthdays, and school events? The more you and your spouse can agree on a parenting plan, the smoother the process will go. Consult with your attorney about whether mediation may help.
We are Here for You
At the Harris Family Law Group, we understand the challenges of divorce and are here to guide you through with compassion and skilled advocacy. Contact us for a consultation to discuss your unique situation and how we can help you move forward.
