Connect Marriage

Should You File For Divorce First?

Jeffrey Landers  |  August 10, 2018

Considering divorce? Here are six financial and legal advantages to filing before your husband.

In the world of sports, there are demonstrated advantages and drawbacks to serving first, receiving first, batting first and the like. The pros and cons are analyzed against the strengths and weaknesses of each player or team, and after the coin toss, coaches either make the most of having the upper hand, or compensate for being at a disadvantage. It’s all about being in the best position to win.

In some ways, things are similar in divorce. Even though you may not see the dissolution of your marriage as something to “win” or “lose,” as a Divorce Financial Strategist, I can tell you there are ways to position yourself for the best possible financial advantage . . . and ways that can lead to financial disaster.

For example, if you’re preparing to divorce, you may be wondering if you’d be better off filing before your husband does. Let’s consider some of the potential advantages. When you file first:

1. Your divorce team can be lined up in advance, and without interference.

Achieving the best possible outcome from a divorce requires a team of qualified experts on your side. Filing first means you can take the time to interview and retain the right people. You know you’ll need an excellent divorce attorney, and in financially complex divorces, it’s also essential to have an experienced divorce financial planner on your team. In addition, I recommend a compassionate therapist to help you cope.

Being able to interview/consult attorneys first can also protect you from the possibility that your husband could “conflict out” the best lawyers in your area. All he’d have to do is meet with each one just long enough to establish an attorney-client relationship, after which they would be prohibited from representing you.

2. You can gather and organize important documents before divorce proceedings get underway.

Many divorcing women spend time and money chasing down financial and legal documents from a husband unwilling to provide them. Save yourself the grief and legal fees by locating and copying all the documents on my Divorce Financial Checklist before you file. It’s a long list, and you may even have things to add to it. Before divorce papers are served, store the documents in a secure location your husband can’t access.

3. You can secure access to funds and credit.

Hiring your divorce team is an essential investment in your financial future, so you’ll need money to see the process through. I’ve long advocated for women to take an active role in family finances, and ideally, you’ll have some fairly significant funds in an account that’s yours alone. If you don’t, you need to open that kind of account as soon as you begin to think you may be divorcing. Remember: Divorce professionals don’t come cheap with most charging hundreds of dollars per hour and requiring retainer fees of thousands of dollars upfront.

Likewise, if you don’t have a credit card in your own name, you should obtain one as soon as possible. It may not be easy to do later, and you will need credit to manage your expenses both during the divorce and as a single woman afterward.

4. You may have a choice as to where your divorce will be decided. 

Divorces are generally filed and decided in the jurisdiction in which one or both spouses reside. If you have more than one venue available to you (equal time spent at homes in New York and Florida, for example), you might be amazed to discover the differences in laws regarding spousal support, child custody, division of marital assets and other critical considerations. Jurisdiction could have a tremendous impact on the outcome of your divorce. Do your research, and consult with attorneys wherever you might file.

5. You may limit your vulnerability to your husband’s financial dirty tricks.

It’s unethical, illegal, and just plain rotten, but many husbands hide assets during the divorce process. If you file first, you might narrow his window of opportunity to engage in these underhanded tactics. This is especially true if your state requires an Automatic Temporary Restraining Order (ATRO), which prevents either spouse from taking certain financial actions once a divorce is filed.

6. You may gain strength emotionally. 

In my observation, there are significant emotional advantages to filing first. Taking steps to get yourself out of an unhealthy situation is tremendously empowering. To be sure, big changes sometimes require scary leaps – but acting, rather than reacting, puts you in a mindset open to possibility and opportunity.

In every divorce, there is much that will be out of your direct control. However, as you can see from what I’ve outlined here, filing first can put you in the driver’s seat for some of it. Still, I also need to say that there can be terrible reasons to file first. Be honest with yourself. If you’re racing your husband to court out of spite, or if you want him served with papers at a particularly embarrassing time, or if your thoughts are akin to “you can’t fire me, I quit!” . . . then, it’s time to reevaluate your strategy.

Just as in sports, the team losing the coin toss isn’t fated to lose the game, and you need not suffer financially if you don’t file first. In fact, there are certain circumstances where filing first can actually put you at a disadvantage. For instance, if your husband files first and your case goes to trial, it’s likely that he (the plaintiff) will have to present his case first. That could give you the opportunity and extra time to refute his case. If you file first, that opportunity becomes his!

As you can see, the benefits of filing first are worth considering, but you need to carefully weigh the pros and cons with your divorce attorney.

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