Getting a divorce is an extremely stressful situation for everyone involved. Emotions are running high, and there is a seemingly endless laundry list of things to sort out. It’s natural to want to get the jump on proceedings by filing first.
But it’s important not to get ahead of yourself and to carefully consider the possible ramifications–and benefits–of filing for divorce first.
At Holstrom, Block & Parke, APLC, our Family Law Specialists and associates have years of experience dealing with divorces and can help you decide what’s right for you in your specific situation. To get you started, here’s a general overview, including:
- Pros of Filing for Divorce First in California
- Cons of Filing for Divorce First in California
- Factors to Consider Before Filing First
- The Importance of Legal Counsel
Pros of Filing for Divorce First in California
Filing for divorce first might not give you a significant legal advantage; however, it has some definite benefits.
While the exact impact of filing first depends on your specific situation and that of your spouse, here are some pros you may see if you file first.
Control
The primary benefit of filing first is having control over the timing. You can begin the process when you are prepared, giving you an edge on the upcoming legal proceedings.
Additionally, when you file, you can request temporary orders for custody, support, residence in the marital home, and other matters.
This can be especially important for situations of domestic violence, families with young children, or if you have concerns about asset dispersion.
Choice of venue (sometimes)
Filing first can sometimes affect jurisdiction or where the case is heard and where arbitrations and other meetings occur.
This can give you a logistical advantage, especially if you and your spouse live in separate counties.
However, things such as commute time, work schedule, and child care will still be taken into account when arranging scheduled meetings.
Setting the narrative
Many perceive filing first as an opportunity to frame your case first in the petition, which can impact how the case is perceived, at least initially.
It may give you a slight edge over your spouse, though it should be noted that any legal counsel will look into the full facts of any disputes from an unbiased and facts-based standpoint.
Filing first may also give you time to supply any additional documentation supporting your side first, leading to your narrative being better supported with evidence, though again, this is only an initial advantage.
Mental readiness
A major reason to file first is so that you can be as prepared as possible for the proceedings to come.
Taking that first step to closure and moving forward can be a massive relief and help you be in a better headspace and less emotionally volatile during the divorce.
This means you are likely to be calmer, more rational, and better prepared, as well as feeling better yourself.
Feeling in control
Finally, one of the primary benefits of filing first is feeling in control. A divorce can be an extremely difficult, upsetting, and overwhelming time.
Taking that first step toward resolution can be an empowering feeling and help you to regain some control over the trajectory of your life, finances, living situation, and relationships.
Cons of Filing for Divorce First in California
No one should walk into the divorce process with blinders on, so it’s crucial to understand the several cons of filing for divorce first in California. Carefully consider each of these possible negatives before making a decision.
Financial burden
The petitioner is likely the one who will be responsible for the upfront filing fees, meaning a greater initial financial burden.
Seeking legal aid first also means you are likely to retain it for longer overall, which may mean you have paid more overall when the divorce proceedings are complete.
Potential for conflict
Filing first, especially if you have not notified your spouse of your intentions, may cause conflict or escalate existing tensions.
Being hit with a divorce unexpectedly can be surprising, upsetting, and hurtful and can lead to more malice and emotions throughout the proceedings.
While the best course of action is to have an upfront conversation before filing, we know that this is not always possible.
So, if you do intend to file first without notifying your spouse, it’s important to be ready for the potential conflict that may follow.
Revealing your hand
Your initial filing will contain your desired outcomes from the proceeding, which you will reveal to your spouse.
This gives them the opportunity to dig in their heels and push back at your requests.
In some circumstances, they may not be aware of your end goals, which can lead to a more flexible and mutually beneficial negotiation if you do not file first.
No automatic "win"
Despite what some say, filing first does not grant you an automatic “win” of the divorce.
Filing first does not give you an advantage when it comes to financial or property distribution, custody, or spousal support (alimony.)
Factors to Consider Before Filing First
So, given the pros and cons of filing first, how do you decide what the right course of action is? While seeking legal advice is the best way to choose how to handle your specific situation, here are some of the main factors you will be asked to consider so you can be better prepared.
Your emotional state
Are you prepared for the legal and emotional challenges of divorce? Filing first does not give you an advantage if you are underprepared.
Take time to calm your mind and assess whether you’re ready to go through with this.
On the other hand, if you’re feeling powerless, filing first can help to set things straight and get you on a better path.
Financial stability
It’s key to consider the initial costs and potential for increased legal fees. Filing first requires you to pay an initial filing fee (generally $435-$450 in California). A fee waiver may be possible if your financial situation dictates it.
On top of the filing fee, however, you need to be able to afford legal aid from the time you file. If you file first, you will naturally have to pay legal fees slightly longer than your spouse.
The complexity of your case
Are complex assets, debts, or custody issues requiring careful planning before filing? Make sure that you have all your ducks in a row.
While it’s tempting to file as soon as possible to get the ball rolling, doing so before you're prepared can lead to a longer and messier process, with a higher potential for unfavorable outcomes.
Filing first can also give you an advantage in this area if you need temporary orders for custody or asset evaluation/division.
The Importance of Legal Counsel
The very best thing you can do to give you an advantage in your divorce is to secure good legal counsel. Choosing to file first is an important and highly case- and situation-specific decision.
A qualified California family law attorney can provide tailored advice based on your unique circumstances, helping you weigh the pros and cons and develop an individualized approach.
You need the right guidance and support to decide if you should file first. The Family Law Specialists and associates at Holstrom, Block & Parke, APLC, are ready to steer you through from start to finish.
Give us a call at 855-939-9111 or contact us online to get started with a confidential consultation today and get ready to begin the next chapter of your life.
