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May 22, 2024|Divorce

Should I Wait to File for Divorce?

Factors to Consider Before Filing for Divorce First?

Murphy & Murphy Law divorce attorney in Kaysville, UT.

Divorce can be a difficult decision and a decision that is most often initiated by the woman before the man. If the decision has been made that the marriage isn’t working out, should you file for divorce or wait for your spouse to file for divorce? There isn’t one catch-all answer but a case-by-case answer for what you want for you and your children.

Going through a divorce is never easy.

Should I Wait for My Spouse or File For Divorce First?

Whether you and your former partner agree on the terms of your separation, or you are having trouble reaching common ground, the process takes a toll on all involved parties. So when you are considering filing for a divorce consider the timing, financial ability, emotional needs, and long lasting impact.

Advantages of Filing for Divorce First

The most common reason people want to file for divorce first is so they can “get their day in court”, but the vast majority of divorce cases don’t go to court. There are other reasons to file for divorce first:

  1. Set the tone. You will have the option to file on “fault grounds” or “no-fault uncontested divorce”. If you want the situation resolved amicably file “no-fault” to set the tone. The respondent may change the type of divorce and contest if they would like or you may change the type of divorce at a later date as well.
  2. File when you are ready. If you decide to begin the proceedings, you will determine when the best time for you will be both financially and emotionally ready. You will meet with your lawyer proactively instead of reactively and then schedule meetings that work best for you and your lawyers.
  3. Home-field advantage. By filing first, you choose where the divorce is to be held. Your spouse will have to return to the county of filing. If your spouse lives out of state, the state in which the divorce is filed becomes the state of law. You will also want to find a lawyer who is local to the city/county in which the divorce was filed to have a better understanding of local law and the judges who preside over divorce cases.
  4. Stop disposal of assets or leaving with children. If you file first your spouse can’t dispose of assets by spending or hiding them. They may also not leave with the children and move out of the county and/or state. You will also have the first request of Temporary Orders Hearing to set out the rules during the proceedings: custody, visitation, child support, spousal support, residency, expenses, and other issues.

Disadvantages of Filing for Divorce First

While the advantages may seem worth filing first, do consider the disadvantages to filing first:

  1. Cost. When you file first, your cost will be more with the average divorce filing costing $300 while the counter-petition can run $50-$100.
  2. Rebutting allegations. While you will get to speak first, your spouse will get to respond to the allegations and get the last word.
  3. List of requests. You’ll be giving your spouse a list of all the requests and demands that you have, so don’t undercut yourself.

Murphy & Murphy understands the long-lasting consequences involved with this area of the law, you can rest assured that we won’t ever treat you or your case lightly. We bring over 25 years of experience in practicing law when we come alongside you to present you in the best light during your divorce proceedings. If you have any further questions, contact us by phone at 801-547-9274 or contact us online.

Common Divorce Filing FAQ’s

  1. Must I file for divorce?
    • Marriage is a legal status and to be undone it must be legal undone. This is done by filing for and settling through divorce.
  2. How would the divorce settlement be handled if my husband files an appeal?
    • Settlement agreements usually cannot be overturned on appeal if both spouses agreed to the terms of settlement unless there were problems with how the agreement was reached or other enforceability issues.
  3. How can I stop my partner from inflating their needs?
    • You can not stop your partner from inflating their needs, but you can represent a more accurate representation of what their needs will be based on their past and present needs.
  4. Can my partner limit my kid’s access?
    • Your partner may limit your access to your kids if there are accusations of abuse or credible threat of parental abduction.
  5. What occurs if I move out of the family house while the divorce is being negotiated?
    • Moving out of the family home will not entail a loss of your rights.

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