A spouse who files first for divorce can experience several legal and financial advantages, making the process go smoother for him or her. Here are some of the advantages of filing for divorce first.
Advantages of Filing for Divorce First
Many people find themselves wondering, “is it better to file for divorce first?” Being the first to file for divorce provides some strategic advantages. When two people choose to end their marriage, they have to make many difficult decisions regarding their assets, futures, and possibly the custody of their children. Many couples attempt to keep their divorce as amicable as possible by pursuing an uncontested divorce. However, sometimes a couple’s relationship has deteriorated to the point that they have no hope of making an uncontested divorce work. In some cases, one spouse may even be worried that the other spouse will attempt to hide assets or sabotage his or her chances of custody. There are many advantages of filing for divorce first:
More Control
Divorce typically happens when there are financial and emotional struggles in a marriage. Being the first to file for divorce may help a spouse feel more in control over his or her life, which can ultimately make it easier to draw boundaries in ending a relationship.
When a spouse files for divorce, the clock on the case begins running immediately. The judge in the case schedules discovery, hearing, pre-trial mediation, and trial dates based on the time of filing and rules regarding timing in his or her state. By filing first, a spouse can determine roughly what the schedule of the divorce will be and plan his or her personal and professional schedule accordingly. He or she can also finish due diligence without feeling rushed.
Jurisdiction Decision
The spouse who files for divorce first is allowed to make the choice regarding jurisdiction, which can be crucial if the spouses have already separated and are currently living in two different locations. Spouses can file for divorce in the counties or states where they live, which can help prevent extensive traveling or encountering less favorable local rules regarding divorce actions.
Depending on a couple’s situation, either spouse may find it advantageous to choose where the divorce proceedings occur. For example, if one spouse still lives in Chicago, but the other spouse has moved out of state, the spouse living in Chicago can ensure he or she proceeds with the divorce in Illinois by filing first. Having the divorce take place in a nearby jurisdiction is typically more convenient. There are requirements regarding where a spouse can file for divorce, and he or she should consult his or her attorney to determine where to file. If the couple still lives in the same area, selecting the jurisdiction is not as important.
Evidence Presented First
Spouses who are the first to file for divorce also typically are the first to have their evidence presented at trial. The spouse who files first is also often allowed to rebut the presentation the other spouse makes. Most divorce cases settle before they reach trial. However, if the case makes it to trial, whichever spouse files for divorce first will have a chance to present his or her case to the judge before his or her spouse. The judge will hear that spouse’s story first, allowing him or her to make the first impression. He or she can also present a rebuttal after the other side presents its case. The first to file gets two chances to convince the judge.
Preservation of Assets
The person who files for a divorce action first also has the element of surprise in his or her favor. Once the divorce is filed, any unnecessary spending may be considered dissipation and the spending spouse may be required to reimburse the marital estate. Therefore, once a divorce is filed, it often prevents the other spouse from unnecessary or excessive spending, since that spouse will likely be awarded that debt or have to pay the other spouse back.
Avoiding Dramatic Changes
If children are involved in the divorce process, the parent who is the first to file for a divorce can simultaneously file a motion to maintain the status quo regarding the children’s daily schedule, residence, and parenting responsibilities until the court makes a final decision. This makes sure that the other spouse is unable to make any immediate changes to children’s lives that may not be favorable. However, the court will eventually determine the status quo in the case.
First Choice of Professional Help
When a spouse seeking divorce consults with an attorney, he or she may reveal confidential information. Once a spouse has consulted with an attorney, the other spouse cannot hire that attorney because the confidential information creates a conflict of interest. The earlier a husband or wife begins searching for an attorney, the more likely he or she is to find a reliable, local attorney with whom he or she is comfortable.
In contentious divorce cases, one spouse may attempt to prevent the other spouse from finding an attorney. He or she might consult with multiple lawyers, intending to create conflicts of interest. The more attorneys he or she meets with, the fewer options the other spouse has when searching for legal representation. Finding a local attorney is helpful because the client will have easier access to the attorney, his or her office, and support staff. Further, a local attorney will be familiar with the family law attorneys and judges in the area. For example, a husband or wife seeking a divorce in DuPage County should consider hiring a DuPage divorce attorney.
Time to Find Additional Support
Although finding an attorney is important to divorce proceedings, a husband or wife may want time to find additional support to help him or her through the upcoming months and years. Divorce proceedings are stressful. Many people contemplating ending their marriage seek a therapist for emotional support. They may also take the additional time to consult with a children’s therapist to plan how to tell the children about the divorce. Divorcing spouses may also want advice about custody and co-parenting. Additionally, a husband or wife may want to find financial professionals, such as an accountant, to help plan for his or her financial future.
Time to Gather Documentation
When a husband or wife is thinking about filing for divorce, he or she should gather all documents relevant to property, bank accounts, investment accounts, and saving accounts. He or she should organize all the documents, keep hard copies in a secure location, and keep a digital backup. Having proof of all assets and debts can help a spouse prove to the court what his or her portion of the marital assets should be.
Time to Protect Personal Finances
A husband or wife planning for divorce can plan for a healthy financial future. He or she can start saving money to pay for the divorce or support himself or herself during the divorce proceedings. He or she may want to secure a line of credit to help as well. If he or she opens a credit card, it should be in only his or her name. Further, a spouse contemplating a divorce should prepare so his or her husband or wife cannot cut him or her off from joint finances.
If one spouse controls all the household finances, or even all the money is in a shared account, the other spouse might find himself or herself without access to financial support. In a high net worth divorce, one spouse may also attempt to hide assets to prevent the other spouse from getting a share during the divorce. There are consequences for anyone caught hiding assets during divorce proceedings. However, some people are willing to take the risk to keep their assets to themselves. A skilled attorney can help uncover these potential risks and plan to avoid them.
Disadvantages of Filing for Divorce First
There are some disadvantages of being the first to present a case. Whoever goes first must begin preparing his or her case much earlier. The other side also gets to hear the spouse’s case before presenting his or her testimony. A person seeking a divorce should consult with his or her attorney to determine whether filing for divorce first, and therefore presenting his or her case first, is strategically advantageous.
Anyone contemplating divorce can put themselves in a better position by taking the time to plan. He or she can consider all financial, emotional, and scheduling aspects of the divorce before proceeding. Filing for divorce first may be the right strategic move, depending on the individual’s situation. However, he or she can determine when to file for divorce after consulting with an attorney.
