Should I File First?

All signs point to a divorce war.  You have gone to couples therapy.   It didn’t work.   They are willing to change.  You brought up mediation or an uncontested divorce.  Nope, you guys can’t even agree on a mediator much less the terms of a divorce.   There are no other options.  It’s time to file.

Should you hire a divorce attorney and file first? This question sounds like a military operations question, doesn’t it?   It’s dawn, and your enemy is still sleeping.  Now is the time to strike, to come over the hill and surprise them with your team of divorce lawyers.  Strike first and victory is yours.

OK, let’s slow down military bravado.  Typically, filing for divorce first, (aka coming over the hill with guns blazing) will not provide a tremendous legal advantage.  However, there are some small tactical advantages, to filing first.  Taken too far these tactical advantages can verge on being unethical and work against you in court.   Even in war there are rules of combat.  Read, but keep civility in mind.

Control of the Divorce

In being first you slightly control the case more. It’s holding serve in tennis.  You control when to swing, and when to send the ball over the net.

By filing first you get to choose the timing of the divorce.  You force your spouse to hit the ball back.   Filing papers while she is away on vacation, although considered aggressive, is a strategic move.   She has 20 days to contact a lawyer, and to prepare a response to your filed papers.   By law, your spouse has 20 days to contact a lawyer, and to 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. Because you filed you don’t have a deadline.

If you file first, only you can cancel the divorce.  You have until she files an answer to your complaint to cancel the divorce.  Your spouse cannot halt the divorce. Only you and your attorney can do that.

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, to hire an attorney, to open new bank accounts, to apply for new credit cards, to plan where you would live, to plot out custody schedules, etc. You have a head start.

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.

Court Shopping for Divorce

If you and your future ex live in different states then you get to shop.  Venue shop, that is.  Which is choosing the state where the divorce can be decided by a judge.   If you live in Nevada and your spouse has moved to California you may be able to file the divorce in either state.

You gain the advantage of selecting the state most beneficial to you. 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 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.

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.  Depends on those last words.    Were they important, and on point.  Or just filler.

Other than these advantages filing first is not significant.  Plaintiffs and defendants equally prevail on legal issues and not on who filed first.  There are even situations where filing first can be harmful.  For instance, when you are employed and your spouse just lost her job.  You wouldn’t want to file until she is employed.   For a complete understanding on the best time to file, give our Las Vegas divorce lawyers a call.

Thinking of Filing Divorce First? Call Right Lawyers at (702) 914-0400