Should I File for Divorce First and Does it Matter if My Spouse Does?

You don't know whether to file or wait for your spouse to file, right?

Should I file for divorce or wait for my spouse to file?

Does this sound like a question you have asked or at least wondered about?

It is common for California spouses to ask this question. First, let us agree on one thing. No one should rush into a divorce. Talk to any experienced and intelligent divorce lawyer and he or she will likely tell you exactly that unless there is a compelling reason to file immediately, such as a threat of physical harm that requires a restraining order or the need to obtain court orders to protect children, money or property.

So who should file first? You or your spouse? Let us take a closer look.

Divorce is full of urban legend. Most of these are born from foolish statements that have gained traction over the years or decades. Some of it is just a misunderstanding of the law. When it comes to filing first, the only person you should listen to is an experienced divorce lawyer. Unemotional and logical advice is the path to smart choices.

- B. Robert Farzad

There is an emotional barrier to filing for divorce

It is common to view a divorce as, "picking a fight." The mentality is, if you file for divorce first, then you are the one who wanted it and therefore you are somehow the bad person . This concerns spouses and makes them hesitate to file even when they know that the marriage is over and divorce is inevitable.

The other side of this coin is if you file first, you get to control the process because you are the petitioner.

However, does the Judge care? Is there a tactical advantage to filing first or waiting for your husband or wife to do so? The short answer is no but with a few exceptions.

There is a difference between waiting to file for divorce so you can properly prepare versus failing to file because of procrastination. The second one is risky if filing first gives you a tactical advantage.

- B. Robert Farzad

Should you file for divorce first to gain an advantage on jurisdiction or venue?

Jurisdiction? Venue? What does that mean? Power. The jurisdiction of the Court is its "power" to allow your case to go forward and make orders. What happens if you live in Orange County, consult with an experienced divorce lawyer here, are ready to file but pause because your husband or wife lives in another county, possibly in Northern California?

Does it matter if you file in Orange County Family Court first? Yes it does. If your spouse who lives in a different county files first and serves you, chances are pretty good that is where the case will be heard in that venue. You may suffer the inconvenience of finding a local lawyer in that California County and traveling for Court appearances.

The same is true with jurisdiction. We wrote about the importance of California residency, and how you can file for legal separation in California if you do not meet the six-month residency requirement for divorce. How do you suppose that happens? If you guessed, "file first", you win.

Should you file for divorce first if you need immediate child custody orders?

If your children are in physical danger or in immediate danger of abduction, waiting to file for divorce is foolish. The Family Court has the power to make immediate orders regarding the children if their health or safety is in danger.

Your divorce lawyer must be quick to seek these child custody orders because if your spouse abducts the children or is a threat to their safety or health, waiting has several dangerous consequences. These consequences include the following:

  1. Being forced to file in a foreign jurisdiction to try and get the children back because California lost the power to do so, or
  2. The Family Court not taking your allegations seriously because you did not seek court intervention immediately after you know the children were in danger.

Should you file for divorce first if there is a potential risk to assets?

Talk to any experienced divorce lawyer and they will tell you that at least a few times a year, they will get a case where the husband or wife has emptied out bank accounts, sold assets or disappeared with money.

More often than not, the warning signs and red flags were present. We have consulted with divorce clients we implored to file and not wait but, against our advice, they decided to do nothing. Later, they realized that money and assets are gone and they will have to work hard and spend money to chase it down.

Our divorce lawyers help protect our client's interests against such conduct after we are first consulted and once we determine there is a credible threat to money, assets or property. Wait for your spouse to make the first move and there may be little to nothing to divide.

Your decision to file for divorce is not a decision you should take lightly

It is not easy to file for divorce. Divorce should only be a serious consideration if the marital relationship truly has not succeeded and the spouses have tried their very best to maintain the family unit.

However, once you get to that point, finding the right divorce lawyer and not procrastinating are the first two steps toward success.

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