Maxwell Hills | August 8, 2022 | Divorce

Marriages don’t always work, but both parties may not be in agreement about that. If you’ve brought up an uncontested divorce and didn’t get a response, you may be tempted to file for divorce first, or consider divorce mediation.

Divorces are emotionally charged and can be adversarial. While some spouses can dissolve a marriage amicably, others turn it into a battle and try to “take them to the cleaners.”

If you think your divorce could turn ugly, there are advantages and disadvantages to filing first.

Divorce Terminology

The spouse who files for divorce is called the petitioner. The other spouse is the respondent. The divorce paperwork filed by each is a little different.

The spouse filing for divorce first is responsible for the divorce petition, which starts the process. The spouse receiving the divorce petition is responsible for filing a response.

Advantages and Disadvantages of Filing for Divorce First

Depending on the nature of your circumstances, there may not be an advantage to filing for divorce first. For example, if you and your spouse are getting along but realize the marriage simply isn’t working, joint filing is appropriate.

If your marriage has become so negative that civil conversations aren’t possible, or you have a prenuptial agreement, that’s when the advantages and disadvantages are more important.

Advantages

Choice of Location

If you have separated from your spouse and they’ve moved, you can ensure the proceedings stay in the county where you live by filing first. This will make the process easier for you as far as traveling for your court proceedings.

If you think your spouse’s county offers advantages, you can still choose to file for divorce there. Either way, filing first gives you control over this aspect of the process.

Choice for Professional Help

If you’re considering a divorce, making the first move gives you the choice of the local divorce attorneys. You can choose the best attorney for your case and circumstances. Consultations involve confidential information, so it’s a conflict of interest for them to speak to your spouse if they’ve already consulted with you.

Time to Find Additional Support

Divorce can be stressful and additional support can help you navigate this trying time, such as a therapist or counselor, forensic accountants, financial planners, and more. Being the first to start the process gives you the first pick of these resources. If you think child support is necessary or your children need additional help, you can also search for people to help them.

Planning

Divorce tends to be emotionally charged. When your emotions are compromised, you’re more likely to make snap decisions that you may regret later on. Or worse, these decisions can negatively impact the outcome of your divorce. If you have help early in the process, you can stay more rational and logical to ensure your best interests are in mind.

Information Gathering

A lot of information is necessary for a divorce. Planning early gives you the opportunity to find and copy documents that are important, such as bank, brokerage, and retirement account statements, bills, titles of ownership, mortgage statements, and proof of insurance. You should have all these documents organized and stored in a secure place. If you have digital records, make hard copies and back up your files in cloud storage solutions that only you have access to.

Financial Position

If you plan to file first, you can take the time to save money for the expenses or access credit before your spouse is aware. For example, you can open credit cards in your own name. Some spouses may hide financial assets when they know a divorce is coming, or they may cut their spouse off financially to make the process more difficult. Early planning helps you stay independent through the process.

Disadvantages

Filing Fees

When you file first, you have to serve your spouse with the Petition for Dissolution of Marriage. You’ll need a process server, which costs around $100. Your spouse won’t need to pay these files to provide a response – they only sign the papers and mail them back.

Reconciliation Issues

It’s not uncommon for couples to have rough patches and reconcile. Making the move for divorce and surprising your spouse may ruin any chance of reconciliation, however. If your spouse is reasonable, it may be best to have the conversation face-to-face as an act of good faith and to facilitate a more peaceful, amicable divorce.

If you have children together, preserving some aspects of your relationship is even more important. You may wish to end your marriage, but with children involved, you’ll always have a tie to your spouse through another person (or people). Having an upfront discussion before filing for divorce can help you retain this aspect of your family.

Exposure

Filing for divorce may offer advantages in planning and hiring professionals, but it also “shows your hand” from a strategic perspective. You file the first document and your expectations. Your spouse now knows what you expect to receive from the divorce and can counter it.

Divorce is a negotiation like any other. If you ask for too little, you can miss out on what’s rightfully yours. If you ask for too much, it can spur your spouse to be more aggressive in the proceedings.

Joint Filing

If you believe you and your spouse could have an amicable divorce, you can file a joint petition, also known as an uncontested or collaborative divorce. This means that both spouses agree to the divorce and the divorce-related issues that may come up.

Uncontested divorces are more streamlined and save time, money, and relationships. As long as both parties agree to the divorce terms in writing, the court is likely to approve them. If minor children are involved, the court may review the terms more carefully for their sake.

Consult with Our Orange County Divorce Attorneys

Divorces may be stressful, contentious, and challenging in many ways, emotionally, legally, and financially. Whether you’re initiating the divorce or responding to your spouse, having a lawyer advocating for your rights can help you achieve the best possible results. Contact us today to schedule your consultation!