Who Should File for Divorce First in NJ?

Who Should File for Divorce First in NJ?

Divorce is never easy, emotionally or legally. In New Jersey, when a marriage has broken down beyond repair, one of the most critical decisions to make early on is: who should file for divorce first? This question carries more weight than many realize. Being the first to file can provide some legal and strategic advantages, but it isn’t necessarily the right decision for everyone.

In this guide, “Who Should File for Divorce First in NJ,” we’ll break down the benefits and potential drawbacks of being the first to file for divorce in New Jersey, explore how this impacts the overall divorce process, and help you determine whether it’s the right move for your unique situation.

Understanding Divorce in New Jersey

New Jersey is a “no-fault” divorce state, meaning a spouse can file for divorce without proving wrongdoing by the other spouse. However, fault-based grounds such as adultery, extreme cruelty, or abandonment still exist and may play a role in the proceedings.

A divorce in New Jersey typically involves resolving several key issues:

• Division of assets and debts

• Child custody and parenting time

• Child support

• Alimony or spousal support

Each of these elements is handled either through mutual agreement or court intervention. When a spouse initiates the process, it sets the tone for how these matters might unfold.

Pros of Being the First to File for Divorce

Being the spouse who files first in New Jersey has several practical and strategic advantages.

1. Control Over Timing and Venue

The spouse who files first can often choose the timing of the divorce and, in most cases, determine the venue—the court where the divorce will be heard. This can be especially important if spouses live in different counties, as certain jurisdictions may move faster or be more favorable for specific matters like custody.

2. Preparedness

Filing first typically means you’ve had time to consult with an attorney, gather necessary financial documents, and mentally prepare. This preparation can be advantageous, especially in contentious divorces involving significant assets or children.

3. First Impression in Court

The initial divorce complaint allows the filing spouse to present their side first. While New Jersey courts aim to be impartial, the initial documents may frame the narrative, influencing how the judge perceives the situation, especially if misconduct allegations are made.

4. Automatic Restraining Orders

In some cases, New Jersey courts may issue automatic restraining orders once a divorce is filed. These orders can prevent either party from making major financial moves (like draining joint bank accounts or selling assets), which can help protect marital property during the proceedings.

5. Psychological Advantage

There can be an emotional benefit to acting. The decision to file first may give a sense of empowerment, control, and clarity in a time that’s often filled with confusion and anxiety.

Cons of Filing First for Divorce

Despite the advantages, being the one to initiate divorce isn’t always the best option.

1. Legal Fees

Filing first comes with an initial financial obligation. In New Jersey, the current court filing fee is approximately $300, plus additional costs for serving the divorce complaint on the other spouse.

2. No Guarantee of Favorable Outcome

Filing first doesn’t guarantee a better outcome. New Jersey is an equitable distribution state, meaning marital assets are divided fairly (though not equally). The court aims to be impartial, regardless of who initiated the process.

3. Emotional Fallout

Filing for divorce can escalate tensions, especially if your spouse is unaware or in denial about the state of the marriage. This could lead to increased conflict, making it more difficult to reach amicable settlements.

4. Response Strategy

Once the other party is served, they can counterclaim, offering their grounds and version of events. This can shift the dynamics, especially if both parties prepare for litigation.

Is It Better to Be the One Who Filed for Divorce?

In many cases, yes—being the one who files can offer certain strategic benefits, particularly if the divorce is expected to be high-conflict or involves children, finances, or property.

Suppose you suspect your spouse is hiding assets, becoming aggressive, or preparing for a legal battle. In that case, filing first allows you to get ahead of the situation, freeze financial transactions, and take protective legal steps.

However, waiting may be smarter if your marriage is more likely to end amicably or if you need time to prepare emotionally and financially. Filing prematurely can sometimes backfire, especially if you haven’t had time to assess the whole picture or gather key documents.

When Should You Wait to File?

• You need time to secure your finances or living arrangements.

• You’re in therapy or mediation and hope for reconciliation.

• You’re gathering more information about your spouse’s finances.

• You’re concerned that initiating the process could endanger your safety (in which case, seek legal protection immediately).

Should You File for Divorce First If You Have Children?

Custody and parenting time decisions in New Jersey are based on the child’s best interests, not who filed first. However, the filing party can shape the initial custody proposal, which may guide early discussions or interim arrangements.

If you believe your spouse may attempt to relocate the children or act in a way that undermines your parental rights, filing first could help you file for temporary custody orders or parenting plans early on.

File for Divorce First?? Take Strategic Action with Professional Guidance

While filing first in a New Jersey divorce can offer advantages, such as strategic preparation, financial protection, and narrative control, it is not always the right move for everyone. After considering your specific situation, goals, and emotional readiness, the decision should be made.

Divorce is a significant legal process, and proper guidance is critical to ensuring your rights and interests are protected from the start.

Speak With an Experienced New Jersey Divorce Attorney

If you’re contemplating divorce in New Jersey and unsure whether to file for divorce first, the experienced legal team at Dalena & Bosch can help. With deep knowledge of New Jersey family law, we provide compassionate yet aggressive representation to ensure your interests come first, whether you’re ready to initiate divorce or need answers.

Contact Dalena & Bosch today to schedule a confidential consultation and take the first step toward clarity and confidence.