When should I file for divorce?

New clients often ask the question, “When should I file for divorce?” This seems like a simple question, that should have a simple answer. But it does not. The reason is that every case is different. Here are some reason to file quickly and some reasons to wait. Which of them apply to you?

REASONS TO FILE QUICKLY

1. If you are a potential payer of alimony, you probably should file as soon as possible, because it is the number of years of your marriage that determine the length of your alimony obligation and the filing for divorce and service of the summons and complaint that govern when the marriage is deemed to have terminated, for purposes of alimony. Look at my postings under alimony reform which will explain this issue in more detail.

2. If you are afraid your spouse will make assets disappear or spend money wildly, you should file for divorce quickly because you are entitled to an automatic financial restraining order which will prevent a good deal of the potential damage from occurring.

3. If you are in a rush to get divorced, you might as well file quickly because there are waiting periods in the statutes, and backlogs in the courts. You might as well get in line.

4. You need the assistance of the court to obtain orders in connection with temporary support or custody.

REASONS TO WAIT BEFORE FILING

1. People have feelings about getting served with a divorce complaint. If none of the above apply, you should consider delaying your filing if you think there is a chance of working things out amicably. Having a Constable show up at your house, might make you less likely to negotiate amicably.

2. There is extra cost involved. Once you file, the court sets time standards. Your lawyer will have work to do and you will pay for it. There is mandatory financial disclosure. That will take a lot of time to prepare and will cost both parties money. Usually its a waste of time and not very valuable, but the court requires it, and your lawyer does not have much choice about doing it.

3. Filing may make it hard to use mediation(though not impossible). Filing will make it impossible to use the Collaborative Process which requires that no litigation is pending. You should probably try one of these alternative dispute resolution techniques before filing.

I am sure there are more reasons pro and con. Each case is different. Just because you have retained a lawyer, doesn’t mean that you have to file the case in court.  Being too aggressive in the beginning about litigation could set a bad tone for years to come. Not being aggressive enough could cost you time and money.  This is not a simple question with a simple answer. Your case is unique. Make sure the advice you get and act on is tailored to your situation and that you consider all your choices and options, including  a second opinion, if necessary.

 

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