Clients sometimes ask if it’s better to be the spouse who initiates divorce. From a legal standpoint, there is no surefire advantage to filing first. It should have no bearing on the court’s rulings regarding property or custody or financial support.
From a practical standpoint, the spouse who is served with divorce papers is at a disadvantage. The filing spouse has a head start on the details and perhaps a psychological “shock and awe” edge. But any initial advantage may dissipate.
If you are the spouse who makes the first move
Filing for divorce can be cathartic. If you are stuck in an unhappy or unhealthy marriage, deciding to turn the page is sometimes the hardest part. Filing the divorce complaint cements that decision. You can move forward with a clear purpose.
Filing for divorce can also be strategic. It puts the other spouse on the defensive. If you know what you want from divorce and “get your ducks in a row,” you have more influence over the process and the outcome. Even the grounds under which you file for divorce can dictate the tenor. Are you merely claiming irreconcilable differences or are you accusing your spouse of abuse, abandonment or infidelity?
Initiating divorce does not necessarily mean you will end up with the house or sole custody of the kids. It will not speed up the legal process. In fact, a sudden unilateral move to demand a divorce may cause your spouse to dig in their heels or retaliate in spiteful ways.
If you are the spouse who is served with papers
The main thing is not to panic or overreact. You may be shell-shocked and saddened. Perhaps you are secretly relieved. Either way, divorce does not have to something that happens to you. You can take proactive steps to level the playing field and assert your own interests.
One of the first orders of business is to secure your finances. Has the spouse drained the joint accounts or moved assets? If the spouse has obtained a temporary restraining order in conjunction with the divorce filing, you may have to move out of the home and it is critical to adhere to any no-contact restrictions. However, you will have an opportunity to present your side before a final restraining order is issued.
Before you do something you’ll regret ...
Maybe you fantasize about informing your spouse in a publicly embarrassing “you’ve been served” moment. This can backfire in so many ways. Similarly, if your spouse has blindsided you with divorce papers, there are right moves and wrong moves.
Get legal representation to talk about the immediate steps you should take, and to get a gauge on how your divorce is likely to play out so that you can strategize accordingly.