Since all states now have uncontested divorce, it might not seem that it matters who actually files for divorce. While it is true that uncontested divorce has leveled the playing field to some extent, there are still some advantages to be had if you are the spouse who files for divorce.
Choice of Attorney
If you are the spouse who first decides to get a divorce, you have the time to interview as many attorneys as you want and choose the one who is most qualified and whom you trust the most. In the process of selecting your attorney, you will interview a variety of attorneys you will ultimately not select. Because those attorneys have spoken to you, they are not permitted to meet with or represent your spouse in the divorce. So not only do you get to then choose the cream of the crop as your own attorney, but you can also eliminate other qualified attorneys from representing your spouse.
Choice of State
If you meet the residency requirements in more than one state for divorce, filing first gives you the option to select the state with the most favorable laws to your case. Each state has its own laws about property distribution, alimony, custody, child support, and more, so this allows you to evaluate the options and find the laws that will give you the best outcome. Once a case is begun in one state, the case cannot be heard in another state.
The plaintiff, the person who files the divorce, is the person who presents their evidence first at trial. While the defendant has the opportunity to respond and to present their own case, there is something to be said for creating the first impression. When your attorney goes first, they have the opportunity to set the tone and narrative of the entire case, and this can create an advantage. The defendant is left to respond and play catch up the rest of the time.
When you file first for divorce, your spouse is unaware of what you are planning. Therefore, you are likely to have more opportunities to find and access information that can help your case, such as finding and copying financial documents. This also gives you the chance to become more circumspect about your own affairs so that there is little to be learned by the time the divorce is filed.
Ability to Withdraw the Case
If you are the one to file the divorce, you are the only person who can withdraw the case. Your spouse must continue to respond as long as the case continues. If you want to reconcile, it is up to you to decide when to withdraw the case, which gives you some leverage over your spouse.
Ability to Plan
Filing first allows you the time to make financial plans that can protect your assets and place you in a better financial position. You have the time to move money, open new accounts in your name alone, sell assets, and be proactive.
When you are in the driver’s seat, you control when the case is filed. This means you can time it before a specific financial event in your own life. In general, marital assets are divided as of the date of separation or the date of filing. By filing before a big windfall, you may be able to shield some or all of that money from distribution. Having control of timing also means that you can file for the divorce at an inopportune moment in your spouse’s life when they are distracted, busy, or unable to give the matter their complete attention, thereby giving you some advantage.
Status Quo Order
Once you file the divorce papers, a summons is sent to your spouse. If requested, this can contain a status quo order, directing both spouses not to make any changes with regard to their finances. This means that you and your spouse can’t sell property, buy property, change health insurance, and so on. Because you’re filing, you can plan for this, but your spouse will be surprised, and it could stop them from taking a variety of actions that could impact the case and their own financial position.
Sense of Control
Being the person to file for divorce can help you feel in control of a process that often feels as if it is spinning out of control. Simply deciding when to begin the process can help you feel that you are taking charge of your own life and your own future.
Order of Protection
When you file for divorce, you can also file for a temporary order of protection to protect you from domestic violence. This motion is heard ex parte, which means it is heard without your spouse present or even getting notice of the request. You have the opportunity to set a narrative here and to obtain a protective order from abuse.
This order not only can contain a stay away order, but it can also direct temporary child custody and child support, as well as giving you temporary exclusive occupancy of the home. The order can actually force your spouse to move out. Once you are in possession of the home, it is much easier to maintain possession of it in the divorce.
While there are quite a few advantages to filing first, there are a few drawbacks. When you file first, you must file a complaint that explains exactly what you’re asking for and your grounds for divorce. You have to share this information upfront and your spouse has time to respond to this. Their role is only to respond, while the entire burden of setting out the asks is on you. You must show your hand first. The other disadvantage is that you will be responsible for the filing fees associated with the case.
If you are considering getting a divorce, talk with your attorney to develop a strategy for when and where you should file and the actions you should take before filing.