Probably the most frequently asked question I hear from divorce clients and prospective clients is “should I file first or let my spouse file for divorce?” Some people ask because they’re undecided about filing for divorce, but fear being put at a strategic disadvantage if their spouse beats them to the courthouse. Others have made up their minds, but maybe need time to plan, including selection of an attorney, ensuring their safety in cases of domestic violence or simply gathering information about finances to help streamline the process.
Whatever the reason, nearly everyone considering divorce asks this question at one point or another. So what is the answer? In most cases, it’s a big “YES!” and here are 5 big reasons why I say so:
1) Venue – This refers to where the divorce case is filed. A divorce case can be filed in any county where either party has resided for 10 or more days. When parties have not separated before the divorce, nor is either party contemplating a move, then the answer is often simple…file in the county in which you live. But what if the spouses are separated and live in different counties? An experienced divorce attorney will discuss with you which county is preferable. This could include an evaluation of the family court judges in each county and their track record on the issues your case presents, such as child custody, alimony, etc. While divorce law is the same state-wide, attitudes and tendencies can vary from county-to-county and judge-to-judge. Distance is also a factor. What if one spouse has moved a long distance away? Filing first in your local court would likely eliminate the need to litigate a divorce case in a remote county, which may also impact the attorney you hire as many attorneys won’t travel a great distance for a divorce case or without significant additional cost to the client.
2) Ex Parte Orders – Some divorce clients require certain matters be resolved without delay and the court rules provide for the entry of some orders at the time of filing. An example of this may be that one spouse is concerned that the other party will wipe out the bank accounts or try to hide assets as soon as they’re served with divorce papers. In that event, an attorney can prepare a certain type of order known as an “ex parte order” (meaning the order was entered without notice to the other party), which can be entered when a judge is satisfied that certain irreparable harm might occur without such an order. Therefore, such an order can be entered and served on the other party with the divorce papers and putting the other party on notice at the outset of the case that they are ordered not to disturb the marital assets or run the risk of being held in contempt of court. Other ex parte orders that might be entered immediately may be an order to maintain the status quo for paying bills and marital expenses if the parties are still living together or for custody and/or parenting time if the parties are separated.
3) Judgment Drafting – Although not a legal requirement, it is more or less standard that the Plaintiff’s attorney drafts the final judgment of divorce. The judgment of divorce is the most important document in the divorce case. It details what, if any, agreements were reached between the parties, how the property and debt will be divided, child custody, parenting time and support obligations, and more. How a judgment provision is worded is extremely important and most divorce lawyers have very specific language that they prefer to use in order to protect their clients. Being able to draft the judgment using language the attorney feels is best for their client can be critical to the outcome, even though the other spouse and their lawyer will have considerable input too.
4) Strategy – Just as an experienced attorney may advise a client to file for divorce first in order to prevent the client from finding himself/herself litigating the divorce in an unfriendly, unfamiliar county, the reverse can also be true. An attorney may advise a client, if there are no minor children, to actually move to a different county when the client may currently be living in a county that is less than ideal for the issues that may arise in the divorce. This is particularly relevant where the parties are already separated or preparing to separate.
5) Preventing Waste – It’s not unusual that one party may wish to file first if there is a potential for waste or loss of assets if the divorce filing is delayed. This concern could take many forms, including, but not limited to (i) a spouse who has a gambling or substance abuse issue and is draining the marital assets to support the habit; (ii) a spouse who is giving money or may be preparing to give money to friends or family (frequently overseas making efforts to have money returned all the more difficult); (iii) a family business, real estate or other valuable asset is about to be sold by one spouse and the other spouse is concerned that the proposed sale is not an arm’s length transaction or is being done as a means to diminish the value of the marital estate; or (iv) a party’s spending or credit card activity has become out of control, including, but not limited to, spending money on another person with whom the other spouse is engaged in an extra-marital affair. By filing an ex parte order (as described above) a party may prevent the wasting, disposing, selling of assets or charging excessive debt. A violation of this order could result in the party in violation being found in contempt of court, as well as being responsible for the assets lost.
Of course, no attorney should ever counsel a client to file for divorce before the client is emotionally ready to do so (this should go without saying, but some attorneys excel at the “high pressure sale”). But once the decision has been made that a divorce is imminent, there are usually very few good reasons to delay filing or let the other spouse file first.
James Chryssikos is an experienced divorce, family law and estate planning attorney in Troy, Michigan. For more questions or information, please call us at (248) 290-0515 or visit us at www.chryssikoslaw.com
