Tuesday, March 26, 2013

What are the benifits to filing for divorce before my husband/wife?

Found this article on Forbes.  Author is Jeff Landers.  Pretty interesting and useful food for thought.

Over the years, I’ve had several clients who felt blindsided when their husbands announced intentions to divorce. Some thought all was well enough in their marriage; others knew there were problems, but didn’t think the issues were insurmountable. Whatever the circumstances, divorce can sometimes come as a complete shock.  More often, though, wives have at least an inkling divorce could be on the horizon. Typically, both spouses sense the marriage is on borrowed time, and quite frequently each one is privately considering legally ending the relationship.

If that’s where your marriage stands right now, you may be wondering if you are any better off, financially and/or legally, if you file for divorce before your husband does.
Well, that’s a very good question, and the answer is somewhat complex. While it certainly doesn’t make sense to race your husband to the courthouse out of mere spite, or for the thin and fleeting satisfaction of winning at “gotcha,” there are legitimate reasons to consider filing first, if you have a choice. Here are a few of the most important factors you need to consider:

Financial Advantages of Filing First

You can have your divorce team lined up in advance.
Assembling the right team of qualified experts to help you achieve the best possible outcome from your divorce can take some time. You will need an excellent attorney, of course, and in financially complex divorces, it’s also essential to have a qualified divorce financial analyst  on your side. At a minimum, I also recommend a good therapist to help you through, as well as a vocational expert if you plan to re-enter the job market.

You can gather all the documentation you will need before the divorce begins.
It is critically important to have in your secure possession copies of all relevant financial and legal documents. These include not only bank and brokerage statements and tax returns, but also insurance policies, wills and trusts, retirement account statements, real estate records, vehicle registrations, etc. (See my Divorce Financial Checklist for a comprehensive list.) Locating and copying all these documents can take considerable time and effort, particularly if your husband is controlling or secretive where finances are concerned. Filing first means that you’ll have all your documentation organized and in a secure location before divorce papers are served.

You can ensure you have access to funds and credit before you file.

As soon as you think divorce is in your future, you should immediately begin to set aside money for the expenses involved. Make sure you have enough money to hire your divorce team; it is a critical investment in your financial future. Also, if you don’t have a credit card in your own name – and you absolutely should! – obtain one as soon as possible, as it may be hard to do so later.
(More advice for taking the first steps towards divorce are available in my earlier blog post, Five Best Financial Tips For Women Divorcing In 2013.)

Filing first may prevent your husband from hiding assets.
Deplorable as it is, many husbands hide assets during the divorce process. Filing first, particularly if you live in a state which requires an Automatic Temporary Restraining Order (ATRO), may help guard against any underhanded tactics.

Legal Advantages of Filing First

Filing first lets you choose where your divorce will be adjudicated.
Divorces are generally decided in the jurisdiction in which they are filed. If you and your husband have already separated and live in different counties or states, or if you spend equal time at homes in Connecticut and New York, for example, it is worth your while to check into the legal implications of filing in the different venues legitimately available to you. State laws can be widely different regarding such crucial considerations as child custody customs and division of marital assets, including whether or not an ATRO is part of the process. Your experience and expected outcome might vary widely in different jurisdictions. Do your research, and consult with attorneys wherever you might file.  As Laura A. Wasser , Divorce Attorney to stars like Maria Shriver, Heidi Klum, Angelina Jolie, Christina Aguilera, Mariah Carey, Britney Spears and many others, told me, filing jurisdiction can have a significant impact on virtually every issue of the divorce process.

“While in ideal circumstances couples divorce where they live, hiring lawyers or mediators whose offices are convenient for both to get to, the fact is that the filing jurisdiction will influence the outcome of every issue that may arise in the divorce proceeding—child custody, child support, spousal support, division of property,” she said. “That’s why it is so important to know your own state’s practices concerning the key issues.”  You may thwart some dirty tricks your husband could try to pull.  In particular, it may save you from falling victim to the trick known as “conflicting out,” by which the husband meets for quick consultations with all the best divorce attorneys in the area, thereby rendering them unable to serve the wife because they now have an attorney-client relationship with the husband.

I asked Laura to expand on this point, as well.  “In a great many law firms—including mine —you will be routed first to a gatekeeper before an actual lawyer gets on the line. In my case, it’s my secretary who runs a brief but fairly substantive screening process. She will take down basic information like your name, your spouse’s name, how long you’ve been married, how many kids you have, where you are filing your case, and the like,” she said. “The screening process runs a quick check of our database to make sure, for example, that your spouse didn’t phone us a year ago and come in for a meeting in which confidential information was relayed; that would mean I couldn’t represent you. Remember the famous episode of The Sopranos in which Tony’s putative new neighbor, a slimy lawyer if ever there was one, advises him to make appointments with all the top divorce lawyers in North Jersey so Carmela won’t be able to find legal representation? It worked, too; in a later episode, she freaked out at this further evidence of Tony’s controlling ways. We watch out for that sort of thing in this initial screening process.”  You’ll be able to learn more insights from Laura in her upcoming book, It Doesn’t Have to Be That Way; How to Divorce Without Destroying Your Family or Bankrupting Yourself, due out this fall from St. Martin’s Press
The “first to file” may be the first litigant to present his or her case at trial.  But think carefully before you do. Debra DiMaggio a divorce attorney in Illinois, tells her clients there are pros and cons to presenting first.  “On one hand, if you’re the wronged spouse, you may feel the need to be the first to file for emotional reasons. No one wants to be the ‘rejected’ spouse,” she explained to me. “But on the other hand, you may not want to reveal your strategy to the other side, who can then adjust his or her presentation accordingly.”  Debra’s advice is straightforward.

“In my opinion, if a spouse senses trouble in the marriage he or she should immediately meet with an attorney to obtain information about the law and gain practical insight about the process,” she said. “After interviewing a qualified domestic relations practitioner, that spouse will have a keener sense of his or her spouse’s intentions with respect to the marriage going forward.”

I agree wholeheartedly with Debra. While I always encourage my clients to Think Financially, Not Emotionally, there is an emotional component to filing first which can’t be discounted. I don’t need to tell you that ending a marriage can be a wrenching, heartbreaking process. Once the decision is made, though, there can be some real emotional strength to be gained from taking the first tangible steps toward your new life as a single woman. You may find that making the initial legal filing provides the psychological leg-up you sorely need, and that feeling more in control of the process will help you see the divorce through to your best advantage.

Most importantly, however, you need to build a strong, qualified divorce team to guide you through the divorce proceedings and help you secure a solid financial future as an independent woman.


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