Even if you’re the one who initiated the talk of divorce, you may be reluctant to make the first move when it comes to filing. While there may not be specific legal advantages to filing first for divorce—“Filing first does not change the facts of the case or a couple’s situation,” says Stephen McDonough, an attorney and mediator with Next Phase Legal in Massachusetts” —there are intangible benefits that can make all the difference in your present and future.
Set the tone for your divorce
If you’re the one to file first, you set the tone for whether the dissolution of your marriage will be amicable or adversarial. “I have seen litigants take unreasonable stances in their initial pleadings which does nothing but anger and infuriate their spouse and does nothing to move them toward settlement or agreement,” says Kristin M. Lis, family law attorney with Smedley & Lis in New Jersey. Receiving a complaint that claims adultery or substance abuse is the reason for the divorce often creates an explosive reaction. “When you’re the defendant on the receiving end of this type of mail, you’ll wish you had filed first,” says Lis.
Force the other person’s hand
“Filing first is good if you expect the other person won’t participate in the divorce,” says Chloe S. Wolman, family law attorney with Davies Wegner Law in Los Angeles. “Sometimes people are deeply in denial or they believe that if they don’t show up they can prevent you from getting a divorce. That’s not true.” Filing for divorce and then serving the other party then gives them 30 days to respond by filing the proper response papers. “If there is no response filed within 30 days, the person who filed will proceed by default, which means, broadly, that they get what they asked for in the divorce petition,” says Wolman.
Have your pick of divorce attorneys
Filing second can put you at a disadvantage in finding an attorney. “Court rules and scheduling parameters provide sufficient time for the non-filing spouse to obtain his or her own counsel, although the non-filing party may feel additional pressure to retain a lawyer with less time to interview attorneys,” says McDonough. Unfortunately, if your soon-to-be ex has filed first and already spoken to as many local divorce attorneys as possible, your options will be limited when it comes to securing the counsel of your choice.
Even the briefest of connections – whether an in-person meeting or phone call – between your spouse and an attorney creates an attorney-client relationship that would make your hiring that attorney a conflict of interest (a situation depicted on The Sopranos when it was Tony vs. Carmela).
Reclaim your self-esteem
Unhappiness, abuse, infidelity—there are any number of reasons for divorce. When a person has been subjected to an unsatisfying life for too long, “filing first can signify that the victim is no longer going to tolerate such behavior, taking their future into their own hands rather than passively waiting for a change in the other party that is never going to occur,” says Lis. “For some, it is the first in a series of steps in regaining his or her independence and sense of value.”
Feel like you’re in charge
For many people, there is a sense of power from initiating the divorce process. “They want to feel like they left the marriage, rather than they were the party who got left,” says Wolman. Controlling the timing of the divorce filing can help you feel like you’re more prepared as well. “If the other side is not anticipating the divorce action, the initiating party may have already organized financial data, obtained helpful records or information, or even drafted motions, affidavits, and other pleadings well in advance and without time pressure imposed by procedural rules,” says McDonough. Of course filing first can elicit other emotions as well, some that are unwelcome, like guilt.
Have your say when it comes to venue
In marriages where the couple has already separated and are living in different states, “the primary advantage of filing first is that you get to pick the venue,” says Anne P. Mitchell, family law attorney from Boulder, Colorado. “Unless your future ex has some really good reason, a motion for change of venue is going to fail.” If you want to save yourself a lot of travel , filing first gives you the upper hand, at least when it comes to the location of your divorce proceedings.
Even if you are absolutely certain that divorce is the best move for you, it is still not easy to completely upend your personal life. When you file first, the process will finally be started, says Cydney Bulger, family law attorney with The Bulger Firm in Florida. “Most people don’t file for divorce on a whim, and starting the process is the hardest part. Once a party overcomes that inertia, the process can move forward, enabling them to move on with life.”