Does it Matter Who Initiated the Divorce?
Divorce is often an emotional and legally complex process. When couples decide to part ways, one of the first questions that may arise is whether it matters who files first. In New Jersey, while the person initiating the divorce (the plaintiff) does gain certain procedural advantages, the impact of filing first varies based on individual circumstances.
This “Does it matter who files for divorce in New Jersey first?” guide will explore the potential benefits and drawbacks of filing first for a divorce in New Jersey, including legal, financial, and strategic considerations.
Legal Considerations of Filing First in NJ
New Jersey allows both fault-based and no-fault divorces. Regardless of who files first, both parties can present their cases before the court. However, there are several legal advantages to being the plaintiff in a divorce proceeding.
Choice of Grounds for Divorce
The spouse who files for divorce gets to set the tone of the proceedings by selecting the grounds for divorce. You can file for a no-fault divorce in New Jersey, citing irreconcilable differences or separation for at least 18 months. Alternatively, you can file for a fault-based divorce, citing reasons such as adultery, extreme cruelty, abandonment, or addiction. If you want to highlight specific wrongdoing by your spouse, filing first allows you to present those allegations in the initial petition.
Control Over the Timeline
Filing first can make it easier for you to dictate the pace of the case. Once the complaint is filed, the defendant (the other spouse) must respond within a set period (usually 35 days). This can help prevent unnecessary delays and ensure the case moves forward on your terms.
Choice of Venue
In most cases, divorces are filed in the county where one or both spouses reside. However, if you and your spouse live in different counties, filing first allows you to select the most convenient jurisdiction.
First to Present in Court
In contentious divorce cases that go to trial, the plaintiff usually presents their case first. This can be an advantage, as it allows the filing spouse to shape the initial narrative and influence the judge’s perception of the case.
Financial Considerations of Filing First
Money plays a significant role in divorce proceedings. Filing first may offer financial benefits depending on the circumstances of your case.
Preparation and Financial Planning
Filing first gives you time to gather essential financial documents, such as bank statements, tax returns, and property records. This ensures you enter the process clearly and understand your financial standing.
Preventing Hidden Assets
If you suspect your spouse might attempt to hide assets, filing first enables you to request financial disclosures early in the process. You can also file motions to freeze assets or obtain temporary financial support.
Temporary Financial Orders
The spouse who files first can request temporary orders for child support, spousal support, and use of marital assets. These orders can provide financial stability during the divorce process.
Legal Fees and Costs
Filing for divorce incurs court fees, and the plaintiff bears the initial financial burden of those costs. However, if you can afford these expenses, filing first allows you to structure the case in a way that might minimize overall legal fees in the long run.
Strategic and Emotional Considerations
Beyond legal and financial factors, there are strategic and emotional reasons to consider when deciding whether to file first.
- Psychological Advantage: Taking the initiative to file for divorce can provide a sense of control over the situation. Divorce is often emotionally challenging, and being proactive rather than reactive can help you feel empowered.
- Avoiding Surprises: If you suspect your spouse is planning to file for divorce, filing first allows you to prepare emotionally and legally rather than being caught off guard.
- Avoiding Retaliation: Sometimes, a spouse who feels blindsided by a divorce filing may act out of anger or retaliation. If you anticipate hostility, filing first enables you to take protective measures, such as securing financial assets or requesting restraining orders if necessary.
- Impact on Settlement Negotiations: Filing first does not necessarily provide an advantage in settlement negotiations but allows you to set the initial terms. This can be beneficial in influencing how discussions on asset division, alimony, and child custody unfold.
When Filing First May Not Matter
While there are advantages to filing first, there are also situations where it may not make a significant difference:
- No-Fault Divorce Cases: Filing first generally does not provide a significant advantage in uncontested, no-fault divorces, where both parties agree on the divorce terms.
- Equal Access to Legal Representation: Both spouses can obtain legal representation and present their case, so filing first does not necessarily guarantee a favorable outcome.
- Court Decisions Based on Merit: Judges decide on child custody, spousal support, and asset division based on fairness and the children’s best interests rather than on who filed first.
Should You File First in a New Jersey Divorce?
Your circumstances depend on whether you should file first in a New Jersey divorce. Filing first can be advantageous if you want to control the process, set the grounds for divorce, and take early financial and legal precautions. However, it may not matter who files first in amicable or uncontested divorces.
Consulting with an experienced family law attorney such as Dalena & Bosch is crucial if you are considering divorce in New Jersey. The expert divorce specialists can help you evaluate your options, understand the legal implications, and develop a strategy that aligns with your goals. While filing first can offer certain benefits, the most critical factor is ensuring that your rights and interests are protected throughout the process.