Is it better to file first?
Updated: Sep 11, 2018
Whether its sports, business, or most other things there are demonstrated advantages, of being proactive rather than reactive. Professional sports teams are always looking for an advantage over their competition, sometimes its as simple as winning the coin toss. Businesses are often well prepared in advance before targeting a new client. It’s all about being in the best position to win.
In may ways, things are similar in divorce. Even though you may not see the dissolution of your marriage as something to “win” or “lose,” as a divorce specialist, I can tell you that there are ways to position yourself for the best possible financial advantage . . . and ways that can lead to financial disaster.
For example, if you’re preparing to divorce, you may be wondering if you’d be better off filing before your spouse does. Let’s consider some of the potential advantages. When you file first:
1. Achieving the best possible outcome from a divorce requires legal counsel that can ease you through the process. Filing first means you can take the time to interview and retain the right people. You know you’ll need an excellent divorce attorney, and particularly complex divorces, it’s essential to have the right person on your team. Being able to interview, and consult attorneys first can also protect you from the possibility that your spouse could get the person you should have had.
2. You can gather and organize important documents before divorce proceedings get underway. Many people spend time and money chasing down financial and legal documents from a spouse unwilling to provide them. Save yourself the grief and legal fees by locating and copying all the documents before you file. Before divorce papers are served, store the documents in a secure location.
3. You can secure access to funds and credit.
Hiring your divorce attorney is an essential investment in your financial future, so you’ll need money to see the process through. If you don’t, you should consider opening a personal account as soon as you begin to consider divorce. Likewise, if you don’t have a credit card in your own name, you should obtain one as soon as possible. It may not be easy to do later, and you will need credit to manage your expenses both during the divorce and as a single person afterward.
4. You may have a choice as to where your divorce will be decided.
Divorces are generally filed and decided in the jurisdiction in which one or both spouses reside. If you have more than one venue available to you (equal time spent at homes in New York and Florida, for example), you might be amazed to discover the differences in laws regarding spousal support, child custody, division of marital assets and other critical considerations. Jurisdiction could have a tremendous impact on the outcome of your divorce. Do your research, and consult with attorneys wherever you might file.
5. You may limit your vulnerability to your spouse’s trying not to play by the rules.
It’s unethical, illegal, and just plain rotten, but many people try to hide assets during the divorce process. If you file first, you might narrow the window of opportunity to engage in these underhanded tactics. This is especially true if your state requires an Automatic Temporary Restraining Order (ATRO), which prevents either spouse from taking certain financial actions once a divorce is filed.
6. You may gain strength emotionally.
We have observed, there are significant emotional advantages to filing first. Simply knowing it coming and not being caught of guard is an advantage. Taking steps to get yourself out of an unhealthy situation is tremendously empowering. To be sure, big changes sometimes require scary leaps but acting, rather than reacting, puts you in a mindset open to possibility and opportunity.
In every divorce, there is much that will be out of your direct control. However, as you can see from what we have outlined here, filing first can put you in the driver’s seat for some of it.
As you can see, the benefits of filing first are worth considering, but you need to carefully weigh the pros and cons with your divorce attorney, as no one situation is the same.