What to Consider Before Deciding: Should I File for Divorce First?

It doesn’t look like your marriage is going to work.   You brought up an uncontested divorce.  She didn’t respond, or you couldn’t agree on the terms of the divorce.   What should you do next?  You have a feeling, or worry, it’s going to be a divorce war.  Should you filed the divorce first?

Divorce can feel like a battle, which causes people to think strategically.   You are not going to be like you brother, or your co-worker who got taken to the cleaners.  If she wants an ugly divorce you are going to be the first to hire a divorce lawyer and to file.  Okay, you may need a strategy.  But, let’s slow down for a moment and discuss if filing the divorce first is a good strategy for you.

Typically, filing for divorce first does not typically provide a huge advantage. Here are our thoughts on some of  the advantages, and disadvantages of filing your divorce before your spouse.

Benefits of Filing for Divorce First

1. Control

In being first, you will slightly control the case more. It’s like holding the serve in tennis. You control when when to send the ball over the net.  If you file first,  you control when the divorce gets filed.  You can decide to cancel the divorce, as long as she hasn’t filed a response.  You have until your spouse files an answer to your complaint to cancel the divorce.    By filing first you are the plaintiff and she will be the defendant.  At trial, if your divorce case goes that far, you would go first.

In deciding when to file you don’t need to worry about a reason.   Nevada is a no-fault divorce state.  This means the reason for the divorce doesn’t matter.   States use to require you to have a reasons to file.   This is no longer the case.   All you need to show the court is you both have “irreconcilable differences.”

2. Timing

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.

3. Surprise, I’m Divorcing You

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.

4. Choosing Your Battleground

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.

5. Preparing

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.

6. Prevent Your Spouse From Hiding Assets

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.

7. The Last Word

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?

8. You Might Just Feel a Little Better

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.

Disadvantages of Filing for Divorce First

Statistically, there are no major advantages either way. But here are a couple disadvantages we have come across.

1. You Show Your Hand

As the filing spouse, you file the first document.  This is called a Complaint for Divorce.   You must state exactly what you want in the divorce papers. Now, your spouse has a list of all your demands.   Did you ask for enough, or did your ask for too much?

Divorce is a negotiation, so you will typically ask for more than you want.  But, by asking for too much more may cause your spouse to over react.   This can cause your spouse to dig in and refuse to negotiate.   When filing first, don’t be over aggressive.

2. You Pay More

Because you filed first you must serve your spouse with the Complaint for the divorce.   To properly serve your spouse you will need a process server.   Process servers costs around a hundred dollars.   Your spouse doesn’t need to serve her response to your Complaint.  She only needs to mail it back.

Common Filing First Questions

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.

1. Can Both Spouses File for Divorce?

This is a question we often get. No. Only one spouse can file first. 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.

2. If I File for Divorce First, Do I Get Custody?

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.

If you have  divorce questions, call Right Lawyers at (702) 914-0400 to speak with a divorce attorney.