Many attorneys will tell you that getting the jump on your spouse and filing for divorce first has no effect on your case. To some extent, this is true. But filing first is proactive, and it might help you feel like you’ve done something toward improving your future and taking control. There are some subtle and important legal advantages as well.
End Date of Marriage
The date you end your marriage can be of critical importance in community property states. These include Texas, Nevada, New Mexico, California, Arizona, Idaho, Washington, Wisconsin and Louisiana. In these states, spouses own an equal share of everything earned or purchased during the marriage, and they are equally liable for debts as well. Everything you earn or buy after the day you file for divorce is generally yours. You’re also not responsible for any debts your spouse might run up after the filing date of your divorce complaint. In equitable distribution states, a judge often decides property division on a case-by-case basis, but these states use the date of complaint as a severing point for separately owed debts and jointly owed assets as well. The sooner you file, the sooner you're protected.
More Immediate Relief
If you’re in a tenuous situation where your spouse has moved out and isn’t contributing to marital bills, or if you’ve moved out and your spouse won’t let you see the children, filing for divorce allows you to immediately petition the court to fix these situations. Generally, motions for temporary relief must be “attached” to an active divorce complaint; they’re filed with the court under the complaint’s docket or case number. The sooner you file for divorce, the sooner you can address immediate problems and secure the status quo while your divorce is pending. Some states have waiting periods before divorces are final.
Control of Proceedings
Filing for divorce first gives your attorney a small edge as well. If you file on fault grounds and you live in a state where this might eventually affect custody or alimony issues, a judge will become aware of your side of the story first if you file first. Judges normally read all documents filed in a case prior to hearing an issue, and they usually read them in the order they’re filed. You’ll have the first say, and if you can’t reach a settlement with your spouse, your attorney will have the first chance at trial to present your evidence and your arguments to the judge. Your spouse’s attorney is generally left to try to rebut your case by presenting evidence of his own.
If your spouse files first, this doesn’t mean your case is doomed to failure. You can file a counterclaim to his complaint. This allows you to list your own allegations, rather than merely respond to his. A counterclaim also usually prevents your spouse from dismissing your divorce for any reason. In effect, a counterclaim is like a litigation within a litigation. Your spouse can dismiss his own case, but he can’t dismiss your charges. If all you do is answer his divorce petition, you don’t have this same protection. This isn't true in all states, however, so consult with your attorney to find out if it’s worth submitting a counterclaim if your spouse files first.
References & Resources
- IllinoisDivorce.com: The Advantages of Filing First
- Divorce Source: Divorce Truths: The Contested Divorce; Mary Ellen Cates
- The Massachusetts Family Law Group: Advice From a Massachusetts Lawyer – File For Divorce First
- Slepkow Law; Filing for Divorce in Rhode Island: Are There Any Advantages of Filing First?; David Slepkow; August 2011
- Gillespie, Shields & Durant: Advantages of Filing First
- Bankrate.com; Community Property, Common Law, Assets and Debts; Jay McDonald
- Jupiterimages/BananaStock/Getty Images