In life timing is everything, but should you file for divorce before your spouse does? If your relationship is truly a bad one, you may fantasize about that “gotcha” moment when your spouse is served with papers (perhaps not expecting them).  But divorce is a cold, hard reality best not played with revenge fantasies. As polite and professional as judges are, they don’t tolerate their time being used for personal vendettas.

There are some issues you should consider when deciding the timing of filing for divorce.

If your situation is financially complex, you have many assets, high income and substantial retirement savings.  There are some benefits to lining up the professionals you plan to use before the process starts. You should contact our office to discuss your situation and your plans. We can put the right team together to help you. You should consider a financial analyst or an accountant if your finances are complicated or a spouse owns a business. You should also think about getting some assistance from a therapist for you and/or your children.

You can put together the documents needed before the legal process starts. You will need a wide variety of legal and financial documents, including:

• Bank and brokerage statements and tax returns
• Insurance policies
• Wills and trusts
• Retirement account statements
• Debts
• Investments
• Real estate records
• Vehicle registrations

Organizing and copying these records can take a lot of time and effort. Complicating matters may be the fact your spouse is controlling or secretive concerning finances. If you file first, you should have all your documents ready, in a secure location, before divorce papers are served.

If you fear your spouse may go down in a “blaze of glory,” in a shopping spree, or by racking up debt he or she hopes will divided by two, a preemptive strike may prevent that from happening, because:

• The equitable distribution of debts and assets in a divorce is calculated based on their existence from the date of the marriage to the date of the filing of the divorce complaint.
• There may be an advantage financially to you, not your spouse, by being able to set the official end date for equitable distribution.

You may have a choice of jurisdictions where you could file. You can decide which is best for you and file there. You may be separated and living in different states or different parts of New Jersey. Each state’s laws are unique, so one state may have more favorable laws concerning finances and child custody or support than the other. If the two of you live in opposite ends of the state, filing closer to your home makes the process easier.

You can reduce the chances of being unable to retain the services of the attorney of choice due to “conflicting out” when, because of a prior divorce consultation with your spouse, we’d be unable to represent you.

As the “first to file,” you may be the first and last party to present your case at trial.

If your spouse files first, you have an opportunity to answer the complaint and make counter-claims if appropriate. Both parties need to go through discovery where each side exchanges documents and information. This is a critical part of the process and it’s not affected by who originally files what when.

If you think divorce is in your future, whether you file first or not, start saving money for expenses. You need to have enough to hire your divorce team and support yourself until you can obtain spousal support, child support or alimony pendent lite (alimony paid during the divorce). If you don’t already have one, get a credit card in your own name because it may be more difficult to obtain one later.

Whether filing first or not, it’s the facts of your case that really matter. An effective legal strategy along with the ability to carry it out can leverage those facts to help you reach your goals, whether they’re financial or child-related.

If you believe your marriage will end in divorce or the two of you have already made the decision to bring your marriage to an end, contact our office. We can talk about your circumstances, how the law may be applied, possible strategies, and how you can best protect your rights.  We are compassionate counsel and touch advocates.  Contact us today.   You will be glad you did.