One of the most important questions people thinking about divorce ask us is: does it matter who files for divorce first?
Frequently, we have seen clients who were blindsided when their spouses go to the courthouse and file for divorce without any discussion or heads up. Of course, they knew they had problems in their marriage, but had no idea that their spouse was going to file for divorce. Many believe that their problems are not so great that they aren’t insurmountable with some counseling. Indeed, divorce comes as a rude awakening.
Usually, most spouses have some idea that a divorce could be in their future. Oh yeah, they have some idea that their spouse may be considering ending the marriage by divorce.
If that’s the case, you may be asking yourself if there is some advantage to file for divorce before your spouse does. Is there some strategic advantage, either legally or financially, for being the first to file divorce papers?
Does It Matter Who Files For Divorce First?
There is no reason to run at full speed to the court with your hair on fire to file for a divorce. Unless there is a very good reason to file right now (and I mean RIGHT NOW), like the need for a domestic violence restraining order or the feeling that your spouse is going to steal the children, you shouldn’t rush your decision.
On the other hand, many spouses feel that if they file first that they are being the bad spouse by initiating a fight with their spouse. As such, spouses will hesitate to file first despite the fact that they know the marriage is over, divorce is inevitable and they need to move on with their lives.
But, are there advantages to going to the courthouse and filing first or should you wait until your spouse files?
Many divorce lawyers will say that there is really no advantage to being the first to file for divorce. But the truth is that there actually are certain advantages and, as with most things, it depends on your individual situation. Let’s look at some of the advantages and the type of situations in which you should file for divorce before your spouse.
Danger to you or the children
One of the biggest reasons to file first is if you or the children are in physical danger or you believe that your spouse may abduct them.
Once you file, your judge can make certain orders your spouse must obey with regard to the children if the court feels that they are in danger. For example, the judge can take away the children’s passports or even prevent the children from having unsupervised visitation with your spouse.
Failing to file for divorce when you or the kids are in danger can have severe consequences. Your spouse can take the kids to a foreign country which will make you have to file for their return in the foreign country in order to get them returned because the California courts have lost jurisdiction. In addition, the court may not take your concerns about the children’s safety seriously in the future because you hesitated to do anything when you had the chance.
Make sure your Orange County divorce attorney aggressively pursues any orders that may be necessary to prevent abduction or domestic violence.
If you and your spouse don’t live in the same city or even the same state, then the spouse who files and serves the Petition on their spouse will be able to have the case heard where they live. For example, if you live in Newport Beach and your spouse lives in San Jose, should you file for divorce first, you will be able to have your divorce heard in the Orange County courts.
There are major advantages to being able to have your divorce tried near where you live.
First, you will not have to travel to another county or even another state when you have to appear in court—your spouse will have to travel potentially long distances.
Second, you will be able to meet with and speak with your divorce lawyer because he is local. Typically, you want to hire a divorce lawyer who practices in the county in which your case has been filed. Thus, your spouse will most likely have to hire an attorney from another county and will have a tough time meeting them in person.
Threat to steal assets or property
There are far too many stories where one spouse took all of the family money out of the joint bank accounts and sold whatever assets they could. Then, with all that money, they just disappeared.
In order to prevent that from happening, it may be best for you to file as soon as possible.
You see, once you file and serve a Petition for divorce on your spouse, there are temporary orders that go into effect. Those orders are printed on the Summons you will serve on your spouse. Once you serve your husband or wife, they are bound by the orders, called the Automatic Temporary Restraining Orders (ATROs), which prevent either spouse from taking the kids out of the state or even selling or encumbering assets.
The ATROs are important to protect your assets in situations where your spouse may try to hide money or other assets before they get divorced.
So, file for divorce first, serve your spouse with the Summons, and the ATROs go into effect, preventing your spouse from emptying out your bank account or selling your assets.
We will aggressively protect your money and assets from a dishonest spouse. When we meet with you, we will help you decide if there is a serious threat to your money to your assets.
Wait too long and you may be out of luck and money.
You may need to file first to get the court to order your spouse to do certain things in your case. And the only way for you to make your spouse do anything is to go to court and then have your judge issue an order.
You may need temporary spousal support in order to stay financially above water. Your spouse may not be providing you with any money for you or the kids to live. Put differently, there cannot be any support orders until you file for divorce.
In this type of situation, don’t wait to file because the longer you wait, the longer it takes to get money from support orders.
Run up debts
After your date of separation, all debts become separate property. To be sure, if you feel that your spouse may run up a big debt, you may want to establish the date of separation as quickly as possible.
Although the date that you file for divorce does not set your date of separation, it can help the court decide when that date should be. Should there be a dispute about your separation date, the court can look to the date one party filed for divorce to establish when the date of separation—and the date all debts become separate—should be.
You Have Time to find an OC Divorce Attorney
It can take some time to find, interview and hire an Orange County divorce attorney that you feel comfortable with and and you feel confident will do a good job for you. If you file first, you will have time to search out and hire the best divorce lawyer you can.
If you wait, your spouse will serve you with the Summons and Petition and then you will have to scramble to find your lawyer within 30 days. If you don’t, you may default on the divorce and your spouse can get a default judgment against you.
Having sufficient time to prepare for your case can be extremely important. Once you are served with the Petition, it may be too late–you have a deadline to get moving.
Time to gather all your documents
During your divorce case, you will need to have access to all of your important legal and financial documents. For example, you will need all of your bank statements, credit card statements, tax returns, insurance policies, retirement account statements, brokerage statements, real estate records, automobile registrations and loan statements, and wills and trusts documents.
You may need some time to find all of these documents and make copies. If your spouse controls these documents and you don’t have access, it can be even more difficult and time-consuming to make copies.
Filing for divorce first can provide an advantage. You will have time to make copies, organize your papers and put them in a secure location.
Obtain access to money and credit
When you first start thinking about divorce, you should immediately begin putting aside funds for future expenses.
First, you will need money to hire a divorce attorney. Potentially, you may need money for a new place to live and all of the expenses associated with your new home.
Also, go out and start to obtain credit in your own name if you have never done that before. Most certainly, you will need your own credit card for future expenses and to be able to sign a lease.
Be the first to present your case to the judge
There are advantages to being able to tell your side of your divorce case to your judge before your spouse has an opportunity at trial.
Most judges will also read the briefs in the case in the order they were filed which means that if you file first, they will read your story first. It is always good to be the first to have a judge hear your side of the story.