When you’re in the midst of a hard personal situation like a marriage that appears to be coming to an end, it’s extremely difficult to think strategically. But that’s exactly what you need to do when deciding whether to file for divorce first. It’s the first move in a very painful endgame, and who makes that move is likely to have consequences for both parties.
It’s imperative to first point out that any potential consequences of being the one who files for divorce will not be legal ones. The state of Florida is a no-fault divorce state. Neither party needs to give a reason for ending the marriage. There are legal grounds for divorce as soon as one person declares the differences between them and their spouse to be “irreconcilable.” It will not matter to the court system which party makes that declaration.
Strategic Advantages in Filing for Divorce First
Just because the letter of the law does not make distinction in who files doesn’t mean there aren’t important strategic advantages to taking the initiative.
Let’s say that you and your ex have been separated and now live in different counties. As the person who filed, you may have the ability to choose which county court system the divorce will be processed in. Each county has different rules, so this is something to go over with your lawyer.
Choosing the venue that’s nearer to you geographically can make a big difference–maybe not in the outcome of the settlement, but in terms of your own quality of life while this process is ongoing. You might make several trips to the courthouse, and if those trips can be made a little easier, that can make a noticeable difference over a period of time.
Depending on the complexity of your financial affairs, you can prepare your case for how the assets should be distributed. Florida is not a 50/50 state. We are an equitable distribution state. That means if you and your ex do not reach a settlement on your own, the judge will divide all your assets in a way they deem to be equitable.
The judge has tremendous discretion in deciding what is equitable. They can consider who brought what into the marriage, what was done during the marriage and what everyone’s financial needs are moving forward.
This means preparation time for you and your legal team is very important. Is there a family business that needs to be properly valued? Are there assets that your spouse may have hidden? Have you invested in stock that has the potential to take off in the years to come? Putting a value on all this can’t be done overnight and getting a head start may serve you well.
Do you anticipate a battle over child custody? Perhaps you are convinced that you offer a better home for the children then your ex does. Putting together the evidence to convince the court takes time.
For example, if you believe your spouse has a problem with alcohol, evidence will need to be provided in court. Your attorney needs time to talk to potential witnesses, or maybe the counselor that you and your ex both saw. Do the children prefer staying with you? Getting their testimony in order is something else your attorney will need to work on.
It’s not that preparation for equitable distribution and child custody can’t be done if you are the one served divorce papers rather than the one who files. It certainly can, and if your case is strong, you have reason for hope. We only point out that it can be better with more preparation time. And–presuming you have made the decision to file on a personal level–there’s little to lose by going first.
Finally, in filing for divorce first, you can set a tone for how this will unfold. Your spouse will have to be served with papers. If you want to set the tone for a conciliatory process, you might choose to serve them personally and in private. But if you know a legal battle is coming, you can have the sheriff’s office serve them papers, quite possibly in their workplace.
A Few Disadvantages
We said there’s “little to lose.” But that doesn’t mean there’s nothing to lose. Before making the decision to file first, there are some disadvantages to be aware of.
Most important is that you will “tip your hand,” so to speak. One part of the divorce complaint is a statement of marital assets and liabilities. You will make a statement regarding child custody. Upon seeing the complaint, your spouse will know what you intend, while you might still be in the dark as to what they’ll be asking for on everything from money to custody.
There are also more fees associated with going first. There’s the filing fee itself. The person doing the filling incurs more of the court costs. And by starting first, you also put your attorney on the clock a little earlier. The advantages of filing first will hopefully allow you to recoup those costs, but that is not something we–or any lawyer–can guarantee.
At Problems? Pick Porter!™, we fight zealously for our clients, regardless of whether they file first or are the ones being served. We know how tough this situation is on you in either case. We have a talented team of family law attorneys and legal staff that’s here to help you get through this entire process and find the best possible outcome the law will allow. Contact us today to set up a consultation, either here online or by phone at (904) 701-0591