First, let me start by stating that I’m no legal expert and depending on what state you’re divorcing in, these advantages may not all apply. My experience was in Texas. I asked my spouse for the divorce, hoping to keep it civil, without hiring a lawyer. Big mistake. Huge. Here’s why:
1. You Feel More in Control During Divorce if You’re the Petitioner
The one who files for divorce first has the advantage of being identified as the Petitioner, while the other party is known as the Respondent. Right out of the gate, being the respondent puts you on the defensive. You’re not asking for the terms you want, you’re responding to the petitioner’s claims. This puts them in the power position, where they usually stay for the entirety of the proceedings.
It becomes the respondent’s responsibility to answer written requests for discovery and defend themselves against all accusations of abuse, neglect, financial mismanagement, and whatever other accusations are hurled at them. If you go to trial, even on temporary orders, it becomes the judge’s job to answer the petitioner’s claims. If they go the route my ex-husband did, asking for everything under the sun, there is a strong likelihood that they will get more than they should, simply because they asked for it.
2. The Divorce Petitioner Has More “Tools” at Their Disposal and Can Use Those Against You
The criminal justice system is a tool often used in contentious divorce proceedings because, right or wrong, it is effective. Having your spouse arrested not only makes them look bad but puts the petitioner in the position of being granted everything they’re asking for by default. If you, as the Respondent, are incarcerated then you can’t show up for whatever hearings they call. In your absence, you can lose everything.
For example, In my case, I had a bench warrant on a 12-year-old case in which I hadn’t stayed in the jurisdiction during my probationary period. This was something my husband knew about and used against me. After our hearing on temporary orders where I was granted both spousal and child support, primary custody, and the family home, he had me arrested and extradited to the state where the warrant originated.
While I was in custody, being driven all around the country in a van full of “fugitives” he called an emergency hearing and everything I had been granted was reversed. He simply told the judge that I was going to be incarcerated for many years, and without any representation to dispute that, the judge granted his petition.
The Petitioner uses tools like this often. When the Respondent doesn’t show up and the judge is told incarceration is the reason, the Respondent loses any credibility and the Petitioner is usually granted whatever they’re asking for by default. For instance, I was granted supervised visitation with my child upon my release a few months later, despite the absence of any abuse or neglect on my part, and despite the age of the warrant that caused my incarceration. My ex used that provision to gain leverage and it worked. I gave up much of what I was entitled to just to gain unsupervised time with my son.
3. Filing for Divorce First Gives You the Element of Surprise
Filing first gives you the element of surprise and the benefit of more time to prepare for the divorce. You can prepare your divorce team and pay for them using community assets, and employ a private investigator if needed, all while your spouse is none the wiser.
Speaking from experience, when your spouse is the breadwinner and files first and you are the stay-at-home parent, they will certainly divert their paychecks if they had been deposited in a joint account. They will cancel your credit cards, remove your access to accounts online and ensure you have no cash available to hire your own representation to respond to their divorce petition.
I’m not the only mom I know that was forced to borrow from friends and family just to pay a retainer. If your spouse has a high income, as mine did, he will use his position as the Petitioner to bleed your retainer quickly. Those legal fees racked up by unnecessary hearings and back and forth battles? Those are your responsibility unless a judge orders your spouse to pay them. And trust me, that can take years.
My divorce took 2 ½ years to settle. My ex spent more than $40,000 on legal fees. Luckily, I could get a pro bono attorney for abused women after spending more than $10,000 in borrowed funds for legal fees. AVDA, Advocates for Victims of Domestic Abuse, is the only reason my ex wasn’t successful in his attempt to leave me with nothing. Organizations like these do exist, but they are grant-funded and can only take a small fraction of the cases they’re asked to consider. It’s worth looking into if you’ve been the victim of domestic abuse, but don’t expect the process to be quick.
In conclusion, the benefits of filing first are too big to ignore. File first. Keep it a secret. Have your own money and a plan in place before your spouse is informed. You might feel like you owe them the respect of a face-to-face breakup. I did, and it was the biggest mistake of my life.
Sandy, I don’t doubt that with hindsight you feel that filing first would be advantageous but the step that has taken first and that you omit to mention is that there has to be an assessment of how difficult your divorce is likely to be. You’re probably in the 20% of cases that are going to be rough divorces and divorce-professionals can identify these cases very early on. Thankfully, the vast majority of divorces are not as difficult as yours and do not take anywhere near as long.
An estimated 20% of divorces are going to be good divorces and the remaining 60% could go either way depending on the choices made during the process. If your situation has the potential to be handled cooperatively, then two of your three steps – filing first, filing in secret will seriously jeopardize that potential and you will end up spending much more in legal fees than you needed.
BTW … that funding for assisting victims of domestic violence is on the chopping block. Trump has proposed eliminating 25 programs run by the Department of Justice Office on Violence Against Women. It’s likely to be in the budget cut proposals in February so anyone who has ever benefited from assistance from OVW, anyone who has been a victim of DV and anyone who knows someone impacted by OVW needs to contact that Federal senator and representative and speak out to protect this critically important funding.
Having Trump in the Whitehouse has triggered memories from my volatile divorece. When I read hr was cutting funding to domestic violence victims programs I was heartbroken.