San Diego, CA – Should I file for divorce first, before my spouse has a chance to? You’ve probably thought about this question if you are considering filing for divorce. In California, does it matter if you file for divorce first, or if your spouse does?
“This is a question divorce attorneys hear often,” says John Griffith. “Does the court label you the bad guy if you are the first to file, or do you get to control the process more if you file first?”
The first person to file for divorce in California is known as the petitioner. If the case eventually ends up at trial, then the petitioner will put his or her case on first. However, between the filing of the initial Petition and the time the case goes to trial, many court hearings may take place requesting that the judge make temporary orders to bridge the gap between filing and trial—most of the time that gap is at least a year and even up to five years depending on the case. At these hearings, the party seeking the temporary orders files an additional request called a Request for Order or “RFO.” RFO’s can request child support, spousal support, attorney’s fees and many other forms of temporary relief. The party filing the RFO presents his or her case first at the RFO hearing. There really is not distinct advantage during the pendency of a divorce case to be the Petitioner or the Respondent.
Most legal experts believe that there is little legal advantage to who files first because California is a no-fault divorce state, so the court really doesn’t care who files the petition first. But, there are some important reasons why filing first could protect you and your family.
So, when should you file first for divorce?
If you and your spouse live in different cities or different states, then the party filing and serving the Petition for divorce has the distinct advantage as to where the divorce case will be litigated. It is a huge advantage to be able to litigate a case in your home city as opposed to having to travel and present evidence far away from home. Further, you want to be able to hire a divorce lawyer that you can speak to and meet with in person. If your out of state spouse files first, then you would have to hire a divorce lawyer in the jurisdiction where he or she filed.
Danger to assets or property.
Have you heard a divorce horror story where one spouse emptied bank accounts, sold off assets, and then disappeared? It may not happen often, but it does happen. To prevent your money and assets from disappearing, it is in your best interest to file right away so your attorney can aggressively work to protect you and your future. Once a Petition for divorce has been served on the other party, Automatic Temporary Restraining Orders go into effect precluding either party from transferring or encumbering assets. These orders are essential to asset protection in cases where one spouse intends to hide marital assets in contemplation for divorce.
Says John Griffith: “The end of a marriage is always difficult, and the decision to divorce should never be made lightly. But, as soon as you realize the marriage cannot be maintained, it’s best to consult with an experienced attorney who will work hard to protect you, your children, and your assets during the divorce proceedings.”
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