It is never a happy moment when a marriage ends. Often times, couples struggle
to patch up problems, but to no avail. It is a difficult choice; however,
divorce may be the only option. If you are sure your marriage cannot be
salvaged, you and your spouse may file to dissolve your union. You may
wonder if it makes a difference who files first for divorce. Although
there is no right or wrong for who files first, there can be advantages
and disadvantages. The court and judge usually look at both party’s
information equally. However, it can make a difference if you file first.
The Advantages of Filing First
When you have decided that divorce is your only option, who files first
can affect the subsequent proceedings. Depending on how volatile or amicable
the break up is, you can hold the element of surprise. In especially fraught
relationships, when you know your ex will retaliate, it might be beneficial
to file first, thus catching them off guard. There are, of course, other
pros for submitting a divorce petition first.
Have a say in divorce proceedings - The spouse who files first may have the chance to decide when court dates
are established. If a couple spends equal time in two different states,
the petitioner may also decide under which jurisdiction the divorce takes place.
Properly prepare for the divorce - If you are the first to initiate a divorce, you will most likely have
time beforehand to obtain the proper legal representation, as well as
the appropriate documents and papers. It can also stop your spouse from
hiding money or assets before the break up.
May be the first to present your case - In some instances, the court will look at the papers that were filed first.
This gives you the opportunity to highlight your side of the story before
your ex. In trials and hearing, you can also have the chance to present first.
End date of marriage - Because California divorces are considered community property, the property
and assets the couple acquires during their marriage must be divided equally.
By initiating the divorce, you can acquire separate property and assets sooner.
Immediate relief - If you are involved in an unstable relationship, where your spouse has
moved out and is not helping with the bills or refuses to let you see
the children, filing for divorce can offer quicker relief. Divorce files
can help decide matters of money and child custody.
The Disadvantages of Filing First
Like many things, there are also negatives to filing for divorce first.
It depends on your situation because every relationship is different.
However, some disadvantages of filing first revolve around money and strategy.
You alert your spouse to your demands - When you petition for a divorce, you usually have to list your desires
or demands. The other party sees this at the time they are served. This
allows them to know exactly what you want and come up with a counterattack.
Sometimes pay more fees - The individual who petitions for a divorce first might have to pay the
filing fees. Because you go first, you may also have to pay more in attorney
fees if your lawyer is busy gathering information.
Set forth the dissolution of marriage - If you and your spouse are discussing divorce, you make it solid by filing
for it. Usually in these cases, there is little chance of reconciling,
since one party has already made the move.
At James D. Madden, Attorney at Law, we understand how painful divorce
is. We stand by our clients through the entire process. We thoroughly
prepare each case, paying attention to the details. We are ready to go
to trial if that is what it takes. Our Rancho Cucamonga board certified
family law specialist is waiting to help you. Call today for a free consultation.