There certainly can be advantages to filing your divorce or custody action first. There can also be tactical advantages to waiting until your spouse or partner files. Discuss with your attorney whether there are any advantages to you filing first. Your attorney may advise you to file first or to wait until your spouse files, depending upon the overall strategy for your case and your specific circumstances. Each client’s case is very unique.
Since this is a frequently asked question, some examples are in order. For example, hypothetically assume that your spouse is an orthodontist. He or she has moved out of the house and is transferring $10,000.00 per month to you voluntarily. Your attorney may advise you that if this matter went to court, you would get less money. It would then be advantageous to wait to file and let your spouse set a favorable precedent for you. The court may likely follow this favorable precedent if it has been in place long enough.
However, let us say that this same spouse stopped sending $10,000.00 per month and started sending only $1,000.00 per month or nothing at all. Your attorney would likely advise you to file immediately so you can receive the necessary funds to support your household. If you delayed in filing, you may set a bad precedent. It may appear you were able to make ends meet on this lesser amount, and the court may award you a lower amount of support than you actually need.
If there is a concern that your spouse will begin transfer assets upon learning about your plans for divorce, your attorney might advise you to seek a temporary restraining order to protect against such an action, without giving prior notice to your spouse. This is equally true if there is any potential for domestic violence. Filing first may also be necessary if your spouse will not voluntarily move out of the home and the stress of residing together becomes unbearable.
What about child custody?
The issue of filing first can be critical in child custody cases. There are innumerable reasons why it could be critical to file first. There are also certain circumstances where there could be some advantages to waiting. If you have a child custody case, make sure to talk to an attorney immediately before you make any decisions or set any precedents. For example, moving out of the house before your child custody hearing occurs could have disastrous results for your custody case. As another example, a stay-at-home parent who suddenly agrees to a “50/50 arrangement until the hearing” (just to be fair) could find themselves forced by a court to continue following this arrangement whereas this would have never been ordered if the stay-at-home parent had simply filed right away.
The spouse who files first also gets the benefit of presenting evidence and testimony first and last (called rebuttal) at motions (hearings) and trial. To consider the effectiveness of this on judicial officers please consider this following: All of us have been previously involved in serious discussions and/or negotiations with friends, family, co-workers and business associates. Ask yourself this, “Is it beneficial to have first and last say in these discussions?” Of course it is. The same benefit applies to your divorce action. Even though Judges are very experienced in listening to all sides, they cannot help by being somewhat impacted by hearing from you “first and last”.
However, as noted above, there may be benefits to waiting that outweigh the obvious benefits of filing first. Allow your attorney to assist you in making the decision about whether and when to initiate the legal process by filing a petition for dissolution of marriage. Your attorney can help you weigh the pros and cons of these important decisions.
An equally frequently asked question is whether your case will be detrimentally impacted because your spouse or partner has already filed first and you are left with no option but to respond. Where this occurs, it is critical to recognize that you only get one chance to respond. In other words, you generally don’t get to respond to their reply. Knowing this, you need to anticipate what the reply declarations (their “last say”) will look like. You need to submit multiple declarations covering all possible issues. If you cover all of your bases, so to speak, the Judge will get the necessary information and will make a fair decision for your case.