Does It Matter Who Files For Divorce First?
Divorce is the legal dissolution of a marriage via the court system. After divorce, both parties can legally remarry. However, there are some rights and benefits of marriage that will be lost in divorce. These may include tax benefits, health insurance (including dental and vision); some forms of life insurance, government benefits, etc. To know what the specific legal consequences of divorce would be for you, consulting a Utah lawyer is your best option.
Divorce entails a full and complete division and separation of all assets and resources, which can be expensive and may require extensive amounts of time. If you are interested in marrying someone else, or that is something you think you may want to do in the future, you surely need to get divorced. You don’t want to commit bigamy and be in violation of Utah’s criminal laws. Thus, divorce may be the right choice for you if the relationship between you and your spouse is unsalvageable or if there are other severe circumstances that cause you to feel that divorce is the proper and prudent action to take.
Does it matters who file a divorce first in Utah?
Utah divorce attorneys frequently see clients who are in a hurry to file a petition before their spouse has a chance to do so. Many people seem to think that filing first is essential. But it doesn’t matter who files the initial divorce petition — the process will go on just the same, regardless of which spouse gets there first. Whether you’re the one who files or your spouse serves you with divorce papers, both roles come with their own advantages. There is definitely no advantage at this point and the reason for that is in Utah anyone can do what is called a counter petition which is basically a law suit against the other spouse. If they sue for divorce first then countersue them for divorce right afterwards and ask for whatever it is that is wanted. The only advantage is if the case ever goes to trial, whoever filed first gets to speak first and present their case first. That is the only reason to file first, but other than that there is no advantage in the State of Utah to filing first.
Some requirements for a divorce
One of the things is if the person is not working, the spouse that stays home and takes care of the kids, does not happen a lot, but it happens on occasion and if the divorce is pending; please make sure there is enough income to survive on for a month or two. Take some money out of that joint account because if one closes the account or takes all the money out, the other is left destitute. Happens more often than not.
Cash reserve is needed to get by. The next thing to think through is go through and maybe make a list of everything that is important. Now divorce attorneys and judges, they do not care about small item junk, like pots and pans or your clothes or personal effects. They just do not care, because they are not worth a lot and if toothbrush was left, than buy another one, it is trivial, but they do care about big ticket items such as cars, maybe a nice dining room set, things that would actually have a significant value.
Significant value equals $500 or more, make a list of everything, then go through accounts, do not forget the accounts, retirement accounts, bank accounts, savings, go through the list. There are a lot of different things that might be important to you, put a star by it, because the important things are the items that need to be resolved in the divorce decree. Most divorces are settled; they either settle through negotiation or through mediation, make sure they are the important items that matter. Then be willing to negotiate on everything else, because if the couch is just a couch, who cares if someone gets it? Go buy another couch.
If it is something that is very unique and special to for whatever reason, make sure you get it. That is a little pre-planning to do. Also if there is any prenuptial agreement that has been signed or a post-nuptial agreement, show that to your attorney, evidence is important. Then maybe even have a talk with the spouse about custody. Hey if is a divorce, a separation, how would it work out with the kids?
Have an idea, where is everyone going to live, or who is going to keep the house? Should the house be sold and divided? There are probably a hundred things to go through in a divorce and those are just some of them, but go through everything and decide what is going where. This is what judges do in the family court system.
Some advantages to filing first
There is no reason to run at full speed to the court with your hair on fire to file for a divorce. Unless there is a very good reason to file right now (and I mean RIGHT NOW), like the need for an order or the feeling that your spouse is going to steal the children, you shouldn’t rush your decision. On the other hand, many spouses feel that if they file first that they are being the bad spouse by initiating a fight with their spouse. As such, spouses will hesitate to file first despite the fact that they know the marriage is over, divorce is inevitable and they need to move on with their lives.
But, are there advantages to going to the courthouse and filing first or should you wait until your spouse files?
Many divorce lawyers will say that there is really no advantage to being the first to file for divorce. But the truth is that there actually are certain advantages and, as with most things, it depends on your individual situation. Let’s look at some of the advantages and the type of situations in which you should file for divorce before your spouse.
• You get to plan in advance and take your time selecting a lawyer, rather than having to scramble to find a lawyer to meet with you and file a Response within 30 days of being served.
• You have time to be mentally and emotionally prepared for the financial cost of divorce.
• You have the first choice of which court will hear your case. Depending on where you live, having your case heard in one courthouse over another could be a significant advantage. For example, if your spouse moved to another county, he or she could file in that county once they meet the residency requirement.
• You are in control of the timeframes.
• As the petitioner, you get the first argument at trial.
• By initiating the divorce process, you have the opportunity to start protecting community assets.
• It prevents possible stalling by the other party.
• Be the first to present your case to the judge.
• There are advantages to being able to tell your side of your divorce case to your judge before your spouse has an opportunity at trial.
• Most judges will also read the briefs in the case in the order they were filed which means that if you file first, they will read your story first. It is always good to be the first to have a judge hear your side of the story.
• Time for the collection of all your documents
During your divorce case, you will need to have access to all of your important legal and financial documents. For example, you will need all of your bank statements, credit card statements, tax returns, insurance policies, retirement account statements, brokerage statements, real estate records, automobile registrations and loan statements, and wills and trusts documents.
• Security of the property
There are far too many stories where one spouse took all of the family money out of the joint bank accounts and sold whatever assets they could. Then, with all that money, they just disappeared. In order to prevent that from happening, it may be best for you to file as soon as possible.
You see, once you file and serve a Petition for divorce on your spouse, there are temporary orders that go into effect. Those orders are printed on the Summons you will serve on your spouse. Once you serve your husband or wife, they are bound by the orders, called the Automatic Temporary Restraining Orders (ATROs), which prevent either spouse from taking the kids out of the state or even selling or encumbering assets.
The ATROs are important to protect your assets in situations where your spouse may try to hide money or other assets before they get divorced. So, file for divorce first, serve your spouse with the Summons, and the ATROs go into effect, preventing your spouse from emptying out your bank account or selling your assets. We will aggressively protect your money and assets from a dishonest spouse. When we meet with you, we will help you decide if there is a serious threat to your money to your assets. Wait too long and you may be out of luck and money
• Choice of attorney
One of the most significant advantages to filing for divorce first is you are given adequate opportunity to consult with various attorneys before choosing one. You are basically putting yourself in an offensive position instead of a defensive position.
Disadvantages of Filing First
Like many things, there are also negatives to filing for divorce first. It depends on your situation because every relationship is different. However, some disadvantages of filing first revolve around money and strategy.
• You Alert Your Spouse to Your Demands –When you petition for a divorce, you usually have to list your desires or demands. The other party sees this at the time they are served. This allows them to know exactly what you want and come up with a counterattack.
• Sometimes Pay More Fees – The individual who petitions for a divorce first might have to pay the filing fees. Because you go first, you may also have to pay more in attorney fees if your lawyer is busy gathering information.
• Set Forth the Dissolution of Marriage – If you and your spouse are discussing divorce, you make it solid by filing for it. Usually in these cases, there is little chance of reconciling, since one party has already made the move.
We understand how painful divorce is. We stand by our clients through the entire process. We thoroughly prepare each case, paying attention to the details. We are ready to go to trial if that is what it takes. We are waiting to help you. Call today for a free consultation.
If your spouse serves you with divorce papers, you’re the respondent. While playing this role may not have as many obvious advantages, being the respondent can be beneficial because:
• You have a chance to review your spouse’s requests before making decisions.
• Your divorce attorney can build an effective strategy based on the petition.
• You save money on filing fees and, in some cases, on service fees.
One note to keep in mind — if you’re the respondent, you need to seek out legal counsel as soon as you’re served. You only have 21 days to respond if you were served in Utah, or 30 days if you were served outside of the state. If you fail to file a response within that time, the court may grant a default judgment, giving your spouse exactly what they have requested.
Divorce brings separation. All suffer. There really is no win or loss in divorce. So, before going for a divorce you should consider all those aspects which are going to be affected by your divorce.
Divorce Lawyer Free Consultation
When you need to file a divorce in Utah, please call Ascent Law at (801) 676-5506. We will help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506