Should I Consider Filing for Divorce First?
It doesn’t look like things are going to work out. You have a feeling it’s going to be war. You suggested mediation. Nope. You brought up an uncontested divorce. Still no. You can’t seem to agree on anything. Plus, you’re starting to getting the feeling that you’ll need a divorce attorney before this is over. So the question remains, should you initiate by filing for divorce first?
Divorce can feel like an uphill battle which leads lots of people to think strategically. Will filing for divorce first fit into your divorce strategy to make sure that you don’t get taken to cleaners? You need all the advantages you can get, right? There are some small tactical advantages divorce lawyers feel you gain by filing first.
Okay, let’s slow down for a moment. Typically, filing for divorce first, (aka coming over the hill with guns blazing) will not provide a tremendous legal advantage. When taken too far these tactical advantages can become unethical and work against you in court. Even in war there are rules of combat. And, divorce attorneys must follow ethical rules of litigation. So, keep civility, and ethical issues in mind as you read about filing your divorce first.
The court does not take into account who files first. There are no statistical advantages to being the filing spouse. Since Nevada is a no-fault divorce state, the reason for the divorce doesn’t matter either. Yet there are benefits, however slight.
In being first, you slightly control the case more. It’s holding the serve in tennis. You control when to swing as well as when to send the ball over the net. If you file first, then only you can cancel the divorce. You have until your spouse files an answer to your complaint to cancel the divorce. Your spouse cannot halt the divorce. Only you and your divorce attorney can do that.
By filing first you get to choose the timing of the divorce. You force your spouse to hit the proverbial tennis ball back. Filing papers while your spouse is away on vacation, although considered aggressive, is a strategic move. (Please keep in mind what we said in the beginning about unethical moves and that they can work against you.) By law, your spouse has 20 days to contact a divorce lawyer and prepare a response to your filed papers. If they fail to file the response, you may get a default divorce.
It’s a small victory though. Default divorces are easily dismissed and the 20-day deadline reset. The bigger victory is you forced your spouse into reacting without being able to fully prepare. You don’t have a deadline because you filed first.
Not everyone sees the divorce coming. Surprise can be unsettling and may give you an advantage. You have had time to plan, hire a divorce attorney, open new bank accounts, apply for new credit cards, plan where you would live, plot out custody schedules, etc. You have a head start. Plus you are mentally prepared.
When divorce papers are filed, the court orders a Joint Preliminary Injunction (JPI). A JPI prevents either spouse from selling or encumbering assets. Basically a JPI prevents either party from making any unusual financial moves without the court’s permission. You, with your planning, already made your moves.
If you and your future ex live in different states, then you get to choose the state where the divorce will take place. States have different laws applying to alimony, division of marital assets and debts. One state may offer more favorable spousal support numbers, or business valuation laws. A quick call to a divorce attorney can give you the information you need before choosing.
There are a few sticking points to this strategy. If your spouse hasn’t lived in a state long enough, then the court may not allow the case to be filed there. If the children don’t live in that state, or haven’t lived there long enough (typically 6 months), the court will not allow the case to be filed there.
Filing first gives you the opportunity to prepare. So you have longer to get everything together than the 20 days you have to reply if your spouse files first. It’s important to use this time to get copies of all financial records, account numbers, and gather evidence if you think you’re in for a custody battle. This is also a time to ensure you are financially prepared for the divorce. If you don’t have a job or a credit card, we strongly recommend you start on both before moving forward.
Like we talked about in the preparation stage, it is important to double check that your spouse isn’t hiding any assets. Sometimes they transfer property to friends or relatives. Other times they might move money into an unknown account. Make sure you have all the information relating to assets and finances in order to make sure all community property is split equally when the time comes.
When filing first you are the plaintiff and get to speak first. Your spouse is the defendant and has a chance to respond. The plaintiff gets to reply to the defendant’s response. The defendant only gets one chance to make their arguments. The plaintiff receives two, the first and the reply. So, in a way you get in the last word before a judge makes a final decision. This can be good and bad. It depends on those last words. Were they important as well as on point or just filler?
There is a whirring loss of control when a divorce turns your life inside out. Or maybe you haven’t felt in control of your life in years. Taking control of the situation can give you that small confidence boost you need to get yourself back. Filing for divorce first means you are taking charge of your life and your future.
Statistically, there are no major advantages either way. But here are a couple disadvantages we have come across.
As the filing spouse, you state exactly what you want in the divorce papers. Now, your soon to be ex has a list of all your demands which in a contested marriage will frequently be countered.
It’s a negotiation so asking for more than you think you can get is a common tactic, but is also starts chipping away at your chances of an amiable divorce. It’s up to you and your divorce attorney to determine if this is smart in your situation.
If there aren’t enough community assets to pay the filing fee and the lawyers’ fees, then you could end up paying a little more to make the divorce happen.
People share weird stories which lead to misconceptions about being the first file. If someone tells you something (who isn’t your divorce attorney) that sounds strange, fact check it.
This is a question we often get. No. Only one spouse can file. They are referred to as the plaintiff. The other spouse is the defendant. Whether you are the plaintiff of the defendant is not as important as getting a good team together or doing research yourself into the divorce process.
No. Filing first does not affect custody decisions. The judge looks at the roles of both parents in the child’s life. He or she then decides based on what is best for the child.
With that clarification out of the way, filing first does give you more time to prepare. Finding a living situation that might be more favorable/stable for the child(ren) can work to your advantage in custody battles. Everything in the child’s new environment is taken into consideration. This includes anyone else living in your residence.