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Why Is it Better to File for Divorce First?

by
author image Barbara Diggs
Barbara Diggs is a freelance writer living in France. A former corporate lawyer, she has been writing professionally since 2006. She has been published in numerous print and online magazines, specializing in travel, parenting, history and law. Diggs is a graduate of Wesleyan University and Stanford Law School.
Why Is it Better to File for Divorce First?
A man and woman are arguing. Photo Credit Wavebreakmedia Ltd/Wavebreak Media/Getty Images

Deciding to divorce is often a difficult, gut-wrenching decision. But once you are positive that divorce is the path you want to pursue, you should not delay initiating the action. Filing the divorce petition first can provide you with legal, practical and psychological benefits. By allowing your spouse to file first, you allow him or her to reap benefits that could easily be yours.

Choice of Jurisidiction

When filing for divorce, there may be more than one state or county that has jurisdiction over your action. Jurisdiction is generally determined by where the divorcing parties live. If you and your spouse live in different states or counties, the courts of both states and counties may be entitled to adjudicate your divorce. Because laws on divorce can widely differ--particularly with regard to the division of marital assets--by filing first, you have the advantage of choosing the state with the laws you find most beneficial.

Financial Protection

In most states, filing a petition for divorce automatically freezes your marital assets. This means that your spouse will not be able to hide or transfer assets or personal property or drain joint bank accounts without getting into serious legal trouble. Filing for divorce first allows you to take your spouse by surprise, decreasing the possibility that he or she will able to conceal marital assets before the action begins. If your state doesn’t offer an automatic freeze of assets, you will be able to file an injunction along with your petition for divorce.
In addition, IllinoisDivorce.com points out that the earlier you initiate the action, the earlier you may be protected from any debts your spouse may incur. Debts incurred by either individual in a marriage are generally considered the responsibility of both parties. But if your spouse incurs debt after the divorce action has been initiated, the court may not hold you responsible.

Increased Preparedness

Divorce can be complicated process, both procedurally and emotionally. Filing a divorce action first allows you to be better prepared for all the complexities that come with divorce. You can set the tone for the action, develop various long-term strategies at the outset and brace yourself for the emotional upheaval of the process. You also have the advantage of showing your spouse that you are serious and prepared to execute the action.

First Impressions

The party who initiates the divorce action is also the first party to present its case to the court. This means that you will make the first impression in the proceedings: The judge will listen to your side of the story and review your evidence before hearing from your spouse. As a respondent, your spouse will be in the psychologically weaker position of rebutting your arguments.

Control

Being the first to file a divorce action gives you a certain degree of control. If the proceedings are not, for some reason, working to your advantage or you change your mind, you have the ability to withdraw the action. As IllinoisDivorce.com notes, if you are the respondent, you will simply have to follow along and see the action through to its conclusion.

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