Are There Any Benefits to Filing For Divorce Before My Spouse?
If there is a benefit to filing divorce before your spouse, it is extremely small. The party who files first gets to pay the filing fees, which is a downside to filing first. If a party file first, they will be deemed the plaintiff and will sit on the left-hand side of our courtroom, facing the judge. The party who receives the papers is considered the defendant and will sit on the right-hand side in our courtroom. The main benefit and I’m really stretching to find the benefit here is that the party who files first will be the one that calls the witnesses first. This could be advantageous because sometimes the judge is trying to settle the case, and by calling witnesses first, one frames the debate for the discussions. I am not sure this is much of an advantage, however. A good lawyer on the other side will be certain to reframe the issue to his or her client’s point of view.
There is, however, a real benefit to filing at a particular time. This is because as soon as the divorce is filed, any property that is acquired is no longer considered marital property and is therefore no longer subject to being divided. I’ll use a quick example that will demonstrate the point. It’s not one that happens too often, and it’s never happened in my career, but if we file the divorce today and the spouse wins the lottery tomorrow, the lottery money belongs to the spouse who won it; and will not be divided. However, if the lottery money was won today and we file tomorrow, then the lottery money is marital property and it is going to be divided. Now, that doesn’t happen too often as a practical matter, but issues involving pensions do. For example, if I am the participant spouse and I earn credits on my pension every day while I go to work, and if we take three years before we actually file the divorce, then those three years of earnings in the pension will be marital property and subject to distribution.
If we had filed three years earlier, then those pension credits would be separate, and therefore not subject to distribution. One of the concerns a lawyer must discuss with a client who has a pension is whether or not they want to file sooner or later. The answer will depend upon their strategic issue interest. Obviously, the participant spouse with a pension would prefer to file earlier to cut-off the rights of the alternate spouse, and the alternate spouse would rather file later and continue to accrue rights towards that pension.
Another issue that effects when we should file for divorce involves health insurance. If someone will lose health insurance upon divorce, and someone often will, this may be a very serious concern that dictates the timing.
Sometime support orders will follow from when we file for divorce. The court usually looks to the last tax return filed to calculate support. If the custodial parent knows the other parent is having a good financial year, it may be wise to hold off until the taxes are being filed to file for divorce.
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