by Meg Alexander, Attorney
You may be at the point where you have moved past thoughts of “should I get divorced” and are now contemplating “how and when do I get divorced.” If so, it is only natural to question whether you should file for divorce before your spouse or if it even matters which spouse files first.
Before rushing to file, consider the following advantages and disadvantages of being the first to file.
Financial Benefits to Filing for Divorce First
A significant advantage to being the first to file is that you will feel a sense of control over the process. The divorce process requires an inventory of bank accounts, retirement accounts, real property, personal property, and other assets. Beginning this process before filing ensures that you have an accurate idea of what could be considered marital property without the opportunity for your spouse to move or hide any assets or information about those assets. Even if you think that your spouse would not resort to withholding assets or information from you, gathering this information before filing gives you an advantage over your spouse in preparing for what you want out of the divorce.
Timing and Preparedness
Filing first also allows you to consult with and retain the attorney of your choice. Ethically, an attorney may not represent you or even consult with you if your spouse has spoken to them first. In preparing for filing, you should choose an attorney you feel will best represent and protect your interests. If your spouse gets a head start over you in consulting with attorneys, you may have to settle for an attorney you do not feel entirely in sync with to meet your goals.
The spouse who files first also gets to control the timing of the process. Upon filing your Complaint for divorce, in most situations, your spouse will only have thirty days to file an Answer to your Complaint. So, while you have had as much time as you needed to prepare for the process and choose an attorney, your spouse will need to find an attorney and respond to your Complaint within a limited amount of time. Upon the filing of your Complaint, the other required court dates throughout the process will be triggered, once again giving you more control of the process and timing.
Should your divorce proceed to trial and you were the spouse who filed first, not only do you get to present your evidence and witnesses to the judge first, but you will also be able to rebut your spouse’s witnesses, evidence, and closing argument. This is an advantage because you will be able to attack the credibility of the story your spouse is attempting to put forth to the judge.
Finally, another advantage to filing first could be a sense of relief. The events and emotional toll leading up to the decision to divorce can be arduous and feel never-ending. Filing first may alleviate the anxiety over living with the unknown surrounding your marriage. Filing first indicates that you have mentally prepared for what is to come and are ready for the next stage of your life.
Disadvantages to Filing for Divorce First
Despite the advantages of filing first, there are some disadvantages. Your Complaint will require you to state what you want from the divorce, whether it be custody of your children, how the property will be divided, or whether you are seeking financial support for either yourself, your children, or yourself and your children. Your spouse will now know your demands and be able to prepare counterdemands accordingly. Any element of surprise you were hoping to have will be gone.
Fees are associated with filing a divorce matter, meaning you will likely be responsible for these initial court fees. You will also be responsible for serving your Complaint on your spouse. You are not permitted to do this yourself. In many situations, your attorney can serve the Complaint on your spouse’s attorney, but if your spouse does not have an attorney and a process server is needed, you will be incurring additional costs.
Finally, something to be aware of is that filing first will not give you any significant advantage over the court’s final decision. A judge is required to consider both spouses’ testimony and evidence equally, then determine custody, support, and property division. While you will get to present in court first and frame the narrative, your spouse will get the opportunity to put forth their own narrative. Your spouse may be forced to address the narrative you told first. Still, a judge will consider the whole picture of your marriage, including your spouse’s narrative.
Weighing these advantages and disadvantages in whether to file first is an essential step you will need to take in moving forward with the divorce process. An experienced family law attorney can provide you with the sound advice you need in making your decision whether to file first or not.
Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The Firm practices family law, estate planning, and probate throughout Maryland and the District of Columbia, and represents individuals seeking disability benefits throughout the country. The Firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The Firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.