“Should I file first for divorce?”
“I am worried that my spouse my file for divorce before I do?”
Sound like a question you have asked or at least wondered about?
It’s actually pretty common for California spouses to ask this question. First, let’s 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’s take a closer look.
A divorce filing is often equated with “picking a fight.” The mentality is, if you file for divorce first, then you’re the one who wanted it and therefore you’re somehow the bad guy or girl. This concerns spouses and make them hesitate to file even when they know that the marriage is over and divorce is inevitable. The other side of this coin is that if you file first, you get to control the process because you are the petitioner.
But 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.
Filing 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 far away like Central or Northern California.
Does it matter if you file in Orange County Family Court first? Yes. 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. That means you will be inconvenienced by being forced to find a local lawyer in that county and traveling for Court appearances.
The same is true with jurisdiction. We have written about the difference in California residency and family law and specifically how you can file for legal separation in California if you do not meet the 6 month residency requirement for divorce. How do you suppose that happens? If you guessed “file first”, you win.
Danger to the children is a good reason to file for divorce first in California
If your children are in physical danger or in immediate danger of abduction, waiting to file 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 aggressive in seeking 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 including (a) being forced to file in a foreign jurisdiction to try and get the children back because California or Orange County court lost the power to do so or (b) the family court not taking your allegations seriously because you didn’t seek court intervention immediately after the danger to your children was realized.
Danger to assets or property and the need to file divorce first
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 there and we have even consulted with divorce clients that we have implored to file and not wait but, against our advice, they decided to do nothing only to suddenly realize that money and assets are gone and they will have to work hard and spend money to chase it down. Our divorce lawyers aggressively 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.
So…should you file for divorce first?
It’s 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.
But once you get to that point, finding the best divorce lawyer and filing the divorce petition should be done within a reasonable period of time.