| Read Time: 6 minutes | Category: Divorce

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 your case goes to any type of hearing or trial, you will argue your side first. This can be either an advantage or a disadvantage depending on your situation. 

You may feel better if you are the one initiating a divorce case. This is especially true if you have been controlled, manipulated, or abused by your spouse. Affirmatively filing for a divorce can be an important first step toward removing a toxic influence from your life. It can be important to feel like you are taking back control. On the other hand, presenting your case first reveals your strategy. There can be some advantage to seeing what your spouse has to say before presenting your side. An experienced divorce lawyer will know how best to approach your case based on the specific facts.

Talk to Your Spouse

Whatever the advantages of being the first to file for divorce, they are nothing compared to the advantages of filing for an uncontested divorce. An uncontested divorce is possible when you and your spouse agree on all the divorce terms. With an uncontested divorce, you won’t have to worry about asset hiding because you and your spouse will reach an agreement about how to divide property. It is unlikely that you will have to have a hearing for an uncontested divorce. This means that you will not have to worry about a litigation strategy and the pros and cons of presenting your case first. You and your spouse can even agree on which jurisdiction to file in when discussing your uncontested divorce.

Talk to an Attorney

An amicable uncontested divorce is not possible for everyone. If you are considering filing for divorce before your spouse, you should talk to a lawyer. And even if you have reached an agreement with your spouse, you might want to consider having an attorney review it before you sign.

An experienced divorce lawyer can help make sure you file in the most beneficial jurisdiction. Your attorney can also advise you on whether your state law includes an automatic temporary restraining order. An attorney will know what you can and cannot do under the ATRO and will advise you on how best to prepare and proceed.

Divorce can be a sensitive issue. You may need to discuss personal details and information with your attorney. It is important to hire a lawyer who respects you and makes you feel comfortable. It is also important to make sure that your attorney has the right kind of experience. Divorce and child custody present a unique set of legal challenges. If your lawyer is not experienced in these areas, they may not be the best person to represent you. 

Try to look on your attorney’s website to get an idea of what types of cases they usually handle. Websites often have a section for client testimonials as well. Posts from past clients who had similar legal issues to you and are satisfied with the way their attorney handled their case are always a good sign. With the right representation, you can take full advantage of the benefits of being the first to file for divorce.

Contact Us

Vantage Group Legal is ready to answer all of your divorce questions. Call our office today for a free consultation about your divorce. We will match you with an attorney who can provide high-quality legal services based on your situation. At Vantage Group Legal, we are committed to serving our clients’ needs every step of the way.

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