| Read Time: 6 minutes | Divorce

What Happens When You File for Divorce First?

When you file for divorce first, you become the plaintiff in the case. This means that you may have a bit more control over the case. For example, the plaintiff can drop the case as long as they do so before the defendant’s spouse files an answer. Timing Advantages of Filing First Assuming that your spouse is not also rushing to file for divorce, filing first can let you choose the timing of the divorce. If you want to contact a lawyer before you file, filing first can allow you to set up legal representation before the divorce proceeding is initiated. Hiring a lawyer before filing can prevent your spouse from using the tactic of “conflicting out.” This occurs when one spouse meets with several divorce lawyers about the divorce proceeding, creating a conflict of interest that prevents those lawyers from representing you. Obviously, this is a spiteful tactic, and it is not a common part of a divorce case. In addition, if you live in a major city, it is just not possible for your spouse to meet with enough attorneys to significantly limit your options for representation.  Hiring a lawyer before filing still has advantages. You will not feel rushed during the hiring process if a case has not yet been filed. This will allow you to take your time, ask your potential attorney questions, and find out if you really want them to represent you. Choosing Your Jurisdiction Filing for divorce before your spouse may give you some control over the jurisdiction of your divorce. While there are rules determining where you can file, if you and your spouse live in different states or if you have a secondary residence, you may have some options. Each state has its own divorce law, so there could be an advantage to choosing one state over another. For example, there are three different formulas that states use to determine the amount of child support payments. These different formulas can result in different sums of monthly child support. If you want to make sure your child receives the maximum possible financial support, you may want to file for divorce in a state that uses one particular formula. As mentioned, you will not have a full range of choices available for a filing jurisdiction. You or your spouse must have some sort of residential connection to a state to file for divorce in that state. Talking to a divorce attorney can help you choose the best available jurisdiction. An experienced lawyer will be able to tell you how the law of a particular state can affect your divorce case. An attorney will discuss the pros and cons of each jurisdiction with you and help you make an informed decision. Automatic Temporary Restraining Order In some jurisdictions, when you file for divorce, an automatic temporary restraining order (ATRO) takes effect. The ATRO prevents both parties from engaging in certain actions during the divorce proceeding. Each state is different, but there are several common types of actions that are prohibited under an ATRO. Property Transfers Neither spouse can sell or otherwise dispose of any property once an ATRO is in place. This applies to both property that each spouse owns separately and marital property that is owned in common. If you think that your spouse might try to empty your shared bank account before filing for divorce, you should consider filing first. The ATRO requires both spouses to agree in writing before any such property transfers occur. If your spouse transfers property in violation of the ATRO, there are legal consequences. Penalties can include a fine or imprisonment. Filing for divorce first is an important step toward protecting your assets if your spouse might try to pull a fast one. Child Custody The ATRO will prevent either spouse from removing any children from the state in which the divorce is pending. Only an agreement in writing between the spouses will allow one parent to move with the children. This prevents one parent from moving the children to a different jurisdiction to try to avoid a custody decision. Policy Coverage In some states, an ATRO prevents either party from changing the beneficiary on any insurance. This includes health insurance. If you rely on your spouse’s health insurance for coverage, an ATRO will make sure you remain a beneficiary while the divorce is pending. Filing first can make sure the ATRO is in place before your spouse can change the beneficiaries on any policies. Plaintiff Advantages When you file for divorce first, you become the plaintiff in the divorce proceeding. Being the plaintiff can be advantageous for a few reasons. Default Judgment Once you file for divorce, your spouse will be served with divorce papers. They then have a certain amount of time to file their answer. If they do not file within the specified time, you may be awarded a default divorce. In a default divorce, the divorce terms that you included in your original filing are more likely to be the legally binding terms of the divorce. It is important to note that default divorces are often overturned. Even if your spouse does not file a reply within the provided window, they have a set period of time to contest the default divorce. If your spouse gives a good reason for their failure to respond in time, the court will overturn the default judgment. This essentially starts the case over as if you had just filed your divorce papers.  Some people filing for divorce may calculate their filing so their spouse has a difficult time filing an answer in time. Tactics like filing while a spouse is on vacation and similar strategies are not common, but they do occur. It is not advisable to use one of these strategies because it is more likely that your spouse will be able to get a default judgment overturned if you filed your divorce papers in bad faith. First to Present Your Case As the plaintiff, if...

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| Read Time: 5 minutes | Divorce

I Need a Divorce Lawyer and Have No Money

Many people need a divorce lawyer but cannot afford to pay expensive legal fees. Fortunately, you may be able to find representation through a local legal aid society or volunteer lawyers organization. Many of these organizations provide low-cost or even free legal services to qualifying individuals. These organizations also offer additional resources that may help you with your divorce. Will I Be Appointed a Lawyer? It is required by the Sixth Amendment of the U.S. Constitution that if you are facing criminal charges, the court must appoint you a lawyer if you cannot afford one. However, this does not usually apply in the divorce context. In custody cases involving minor children, some states will appoint a lawyer on behalf of your children. A judge will usually appoint a lawyer for a child if neither parent is representing the child’s best interests. Unfortunately, there are usually no state-funded, court-appointed attorneys for divorce cases. However, this does not mean that you cannot find free or affordable legal representation elsewhere. Courts in some states will appoint a lawyer to represent a parent in certain child custody cases. For example, if your parental rights are at stake, you may be appointed a lawyer under state law.  Where Should I Look for Help? Everyone knows that getting divorced can be expensive. There are court fees you must pay, and you may need to pay a professional custody evaluator or a mediator. The biggest expense by far is hiring a divorce lawyer. Luckily, various options exist if you are worried about your ability to pay for a divorce attorney. The availability of low cost legal services varies by state. All fifty states plus Washington D.C. and Puerto Rico offer some form of legal assistance to people who are not able to afford to pay a lawyer.  Legal Aid Call the legal aid society in your local area to ask about the kinds of services they offer. Different organizations have different requirements. You may have to earn below a certain income threshold to qualify for services. Additionally, the need for free legal services is often much greater than what the local legal aid society can handle. There may be a waiting list for receiving pro bono legal services from your local legal aid organization. Local Bar Association Each state has a bar association that oversees the certification and qualifications of attorneys practicing in that state. Your state’s bar association may be able to suggest options for free or low-cost representation in your divorce.  Some bar associations can offer you a discounted consultation with an attorney. If your divorce case is relatively simple, this consultation may be all the legal advice you need. Not every divorce requires a lawyer to handle every step of the case. If you and your spouse agree on most of the divorce issues, a consultation may be all you need. However, a divorce with one or more contested issues and any divorce with contested child custody can get complicated. A consultation can still help. The consulting lawyer can help you weigh the pros and cons of representing yourself versus continuing to look for free representation. Once you know what the stakes are, you will be able to make an informed decision. Self-Help Tools Even if you do not qualify for free legal representation through a legal aid society, the organization may still be able to help you. Some legal aid organizations offer self-help tools for people facing legal issues. Self-help tools can include programs designed to help you fill out the forms that the court requires for your divorce. Legal forms in their standard format can be extremely confusing, especially if you don’t have prior experience dealing with the court system. Self-help programs offer a question and answer format to guide you through the process. You will answer the questions the program asks to the best of your ability, and the program will use your answers to fill out the forms.  Before you sit down to fill out your paperwork, take some time to get organized. You will need to know some basic information and some more detailed information about you and your spouse’s assets to complete the paperwork. Set aside some time to review your financial records such as bank statements and mortgage documents. This can help you take stock of the property that you and your spouse own, as well as which property you own jointly versus separately. Once you have gathered all the documentation you think you will need, you are ready to begin the process of filling out your forms. Low-Cost Legal Services Getting legal advice does not always have to involve an expensive law firm. Vantage Group Legal offers a subscription service that you can tailor to your needs. After an initial free consultation, you can opt to subscribe to Vantage Group Legal’s services. An attorney who is experienced in divorce law or other relevant matters will be assigned to your case. Vantage Group Legal offers a low-cost alternative to traditional law firms. What Are Some Other Options? If your spouse is easily able to afford an attorney and you are not, you may be able to petition the court to require your spouse to pay your legal fees. In many states, you can file a petition for interim attorney fees or order for counsel fees against your spouse. It is not a sure thing that the court will grant your motion. Your spouse can oppose the motion and respond with reasons why they should not have to pay your legal fees. Ultimately a judge will rule on the most equitable outcome. Some attorneys will want you to pay them for the time they spend filing and defending the motion for attorney fees. If they win the motion, they will then continue to represent you and will be paid directly by your spouse. Another somewhat unpopular option for paying an attorney is taking out a loan. Loans are risky and can leave you in a more difficult financial...

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