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:
- Being forced to file in a foreign jurisdiction to try and get the children back because California lost the power to do so, or
- 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
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
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
However, once you get to that point, finding the right divorce lawyer and not procrastinating are the first two steps toward success.