Kenneth Carroll: Does It Matter Who Files First For Divorce?

Does It Matter Who Files For Divorce First

The short answer is no. It doesn’t matter who files for divorce first, but someone needs to file to get things going.

If your marriage has come to an end and you are headed for divorce, you may want to know if it matters who files for divorce first. Many divorce attorneys argue that there really is no advantage to filing for dissolution (divorce) first, however, we believe that it depends on your individual circumstances.

There are some advantages to filing first, and they include:

• You get to plan in advance and take your time selecting a lawyer, rather than having to scramble to find a lawyer to meet with you and file a Response within 30 days of being served.

• You have time to be mentally and emotionally prepared for the financial cost of divorce.

• You have the first choice of which court will hear your case. Depending on where you live, having your case heard in one courthouse over another could be a significant advantage. For example, if your spouse moved to another county, he or she could file in that county once they meet the residency requirement.

• You are in control of the time frames.

• As the petitioner, you get the first argument at trial.

• By initiating the divorce process, you have the opportunity to start protecting community assets.

• It prevents possible stalling by the other party.

One of the most significant advantages to filing for divorce first is you are given adequate opportunity to consult with various attorneys before choosing one. You are basically putting yourself in an offensive position instead of a defensive position.

Ideally, you and your spouse will conduct the process of physically separating and pursing dissolution proceedings in an organized, amicable, planned, and orderly fashion. If you anticipate any conflict about child custody or property division, then the sooner you seek legal counsel, the better prepared you will be to navigate any issues that arise.

Filing For Divorce

Utah is a “no-fault” divorce state. This means that the only reason you need to file for divorce is “irreconcilable differences.” You must live in Utah for at least 3 months before you file for divorce so that the court has jurisdiction to hear your divorce there, and the divorce must be filed in the county in which you or your spouse lives.

Once the divorce is finalized, the divorce judgment will determine:

• The date the marriage ends.

• Who will get custody of the children and when the other parent will see them?

• Who will pay child support and how much.

• Who will pay the children’s health insurance and medical expenses?

• Who will pay the couple’s debts?

• How the couple’s property will be divided.

• Whether one spouse will pay spousal support (alimony).

• Considering divorce? Here are six financial and legal advantages to filing before your husband.

• In the world of sports, there are demonstrated advantages and drawbacks to serving first, receiving first, batting first and the like. The pros and cons are analyzed against the strengths and weaknesses of each player or team, and after the coin toss, coaches either make the most of having the upper hand, or compensate for being at a disadvantage. It’s all about being in the best position to win.

• In some ways, things are similar in divorce. Even though you may not see the dissolution of your marriage as something to “win” or “lose,” as a Divorce Financial Strategist, I can tell you there are ways to position yourself for the best possible financial advantage . . . and ways that can lead to financial disaster.

• For example, if you’re preparing to divorce, you may be wondering if you’d be better off filing before your husband does. Let’s consider some of the potential advantages. When you file first:

• 1. Your divorce team can be lined up in advance, and without interference.

• Achieving the best possible outcome from a divorce requires a team of qualified experts on your side. Filing first means you can take the time to interview and retain the right people. You know you’ll need an excellent divorce attorney, and in financially complex divorces, it’s also essential to have an experienced divorce financial planner on your team. In addition, I recommend a compassionate therapist to help you cope.

• Being able to interview/consult attorneys first can also protect you from the possibility that your husband could “conflict out” the best lawyers in your area. All he’d have to do is meet with each one just long enough to establish an attorney-client relationship, after which they would be prohibited from representing you.

• 2. You can gather and organize important documents before divorce proceedings get underway.

• Many divorcing women spend time and money chasing down financial and legal documents from a husband unwilling to provide them. Save yourself the grief and legal fees by locating and copying all the documents on my Divorce Financial Checklist before you file. It’s a long list, and you may even have things to add to it. Before divorce papers are served, store the documents in a secure location your husband can’t access.

• 3. You can secure access to funds and credit.

• Hiring your divorce team is an essential investment in your financial future, so you’ll need money to see the process through. I’ve long advocated for women to take an active role in family finances, and ideally, you’ll have some fairly significant funds in an account that’s yours alone. If you don’t, you need to open that kind of account as soon as you begin to think you may be divorcing. Remember: Divorce professionals don’t come cheap with most charging hundreds of dollars per hour and requiring retainer fees of thousands of dollars upfront.

• Likewise, if you don’t have a credit card in your own name, you should obtain one as soon as possible. It may not be easy to do later, and you will need credit to manage your expenses both during the divorce and as a single woman afterward.

• 4. You may have a choice as to where your divorce will be decided.

• Divorces are generally filed and decided in the jurisdiction in which one or both spouses reside. If you have more than one venue available to you (equal time spent at homes in New York and Florida, for example), you might be amazed to discover the differences in laws regarding spousal support, child custody, division of marital assets and other critical considerations. Jurisdiction could have a tremendous impact on the outcome of your divorce. Do your research, and consult with attorneys wherever you might file.

5. You may limit your vulnerability to your husband’s financial dirty tricks.

• It’s unethical, illegal, and just plain rotten, but many husbands hide assets during the divorce process. If you file first, you might narrow his window of opportunity to engage in these underhanded tactics. This is especially true if your state requires an Automatic Temporary Restraining Order (ATRO), which prevents either spouse from taking certain financial actions once a divorce is filed.

• 6. You may gain strength emotionally.

• In my observation, there are significant emotional advantages to filing first. Taking steps to get yourself out of an unhealthy situation is tremendously empowering. To be sure, big changes sometimes require scary leaps – but acting, rather than reacting, puts you in a mindset open to possibility and opportunity.

• In every divorce, there is much that will be out of your direct control. However, as you can see from what I’ve outlined here, filing first can put you in the driver’s seat for some of it. Still, I also need to say that there can be terrible reasons to file first. Be honest with yourself. If you’re racing your husband to court out of spite, or if you want him served with papers at a particularly embarrassing time, or if your thoughts are akin to “you can’t fire me, I quit!” . . . then, it’s time to reevaluate your strategy.

• Just as in sports, the team losing the coin toss isn’t fated to lose the game, and you need not suffer financially if you don’t file first. In fact, there are certain circumstances where filing first can actually put you at a disadvantage. For instance, if your husband files first and your case goes to trial, it’s likely that he (the plaintiff) will have to present his case first. That could give you the opportunity and extra time to refute his case. If you file first, that opportunity becomes his!

• As you can see, the benefits of filing first are worth considering, but you need to carefully weigh the pros and cons with your divorce attorney.

Financial benefits of filing for divorce first

Being the first spouse to file divorce means that a person can begin the proceedings at a time when he or she is financially prepared to do so. A person would have had time to collect copies of all important legal documents, such as deeds, bank and investment account statements, wills, life insurance policies, social security cards, titles to property. They will need these papers as part of the property division process, and it may be more difficult to obtain copies after the divorce starts. Also, a person can assess the family finances and determine the extent of their assets and debts, so they will have an accurate idea of what will be divided in the property division.

People filing for divorce first also have the advantage of doing so after they have ensured that they have access to money and credit to meet their needs during the divorce process.

Possible legal benefits of filing first

One of the main legal advantages that a person gains by filing the divorce petition before his or her spouse does is that the filer can request a Standing Order from the court when filing the petition. Such an order prevents either spouse from making changes to beneficiaries on policies such as life insurance or retirement accounts, selling, borrowing against or transferring property, changing bank accounts and other similar financial moves. This can be important if the spouse filing divorce suspects that the other spouse will attempt to hide assets.

The person who files for divorce also chooses the jurisdiction in which they litigate the divorce. In situations where spouses have lived apart from each other for a substantial period of time, possibly great distances from each other, filing the divorce petition first can prevent having to conduct matters related to the divorce far away from where a person lives.
If the matter should go to a hearing, the person who files the petition usually presents his or her case first. This can be a drawback for a spouse if he or she does not wish to reveal his or her strategy to the other spouse. The other spouse then has the opportunity to adjust the presentation of his or her case after seeing the other side.

That Brings Us to the Respondent

Asking the question “does it matter who files for divorce first?” really has no bearing on a Respondent that will simply sign the petition for divorce stating confirmation of receipt of the petition and additionally file a formal “response” to the petition with the court stating that he or she agrees with everything.

That solidifies the status of a “no-fault” divorce. There then the question “does it matter who files for divorce first,” well, doesn’t matter at all! Because both the Petitioner and Respondent both want the divorce to occur. There’s no real consequence differing between both parties.

However, a Respondent may have a problem with the petition and will file a “response” to disagree with a part or even the entire petition.

Then the question of “does it matter who files for divorce first” matters in a big way. If a Respondent knows that a divorce petition may be coming, he or she can try to get an upper hand and file first and set the provisions and stipulations, leaving the other facing the responsibility to respond and contest the divorce.

But in the Long Run…. It Doesn’t Matter!

The divorce process goes on normally, no matter who files first. Both parties remain on equal terms in the legal system, and no one suffers any loss whatsoever.

What needs to be clear, though, are the roles that are assigned. ‘Petitioner’ and ‘Respondent.’ This is typically important when the divorce is not a “no-fault” but a “fault” as technically the Respondent would be the object of “fault.”

Of course, again, the Respondent can file first even when at fault in the marriage and depending on the state may not receive any disadvantage in the divorce.