Should I File Divorce First? / by Cassandra Hearn

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The decision to divorce is important and difficult. Very few events in a person’s life will be as much of a watershed moment as a divorce, when all events can be measured in “before” and “after.”  Once the decision is made to go forward with a divorce, there are many questions that will need to be answered and actions that need to be taken. Not the least of these issues will be the timing of the divorce. Many clients ask the question about whether it matters if they file first. There are many reasons why filing first can give you an advantage in a divorce.

If you have children and you are concerned that your soon to be ex spouse may pose any sort of danger to them, filing first can be critical. Filing your divorce means you can request that the court take action, in the form of emergency custody orders or at least setting a temporary hearing so you can request temporary custody to protect your children. If you wait to file your divorce, it is possible that a judge would not take your allegations as seriously because you failed to seek help from the court as soon as you knew you would need it. If your spouse takes the children to another jurisdiction, filing for divorce second could mean that the new state acquires jurisdiction over your children. In other words, you could no longer file for custody in California because the new state could be the proper place to bring the custody suit. This could mean unnecessary expense to you by requiring you to travel back and forth to the other state for court hearings.

Another reason to file first, or at least in a reasonable time, is to try to protect your assets and property. Once a divorce is filed, there is an Automatic Temporary Restraining Order (ATRO) that comes into effect preventing you or your spouse from taking certain actions, such as disposing of marital property or blocking your access to marital funds. By filing first, you can make sure that the ATRO comes into effect as soon as possible, protecting yourself and your assets. 

Finally, if your spouse files first, it could be that you have to travel to another county in California simply to get your divorce. If you and your spouse separate, and your spouse moves to another county for at least three months, the spouse may file for divorce in that new county. This could mean that you will have to select an attorney in that county and travel to that county for any hearings. While this may not be a problem if your spouse resides in a county next to yours, it could be an enormous inconvenience if your spouse moved across the state.

We have experience with helping our clients understand the right timing for their divorce and their case. Call us today to talk about your future at 619-800-0384