Laws regarding ways to handle divorce vary from state to state. Since filing for divorce is not a constitutional or legal right, the rules are governed by each state on its own. In order to work an equitable settlement, a lot of planning and thought must go the filing process.
Some people believe that they may gain a legal advantage by being the first to file for divorce. This is not the case. There is no legal edge to be gained by being the first to file. The only advantage you may have from filing first is the element of surprise. By being the first to file, you may prevent your spouse from hiding assets that should be included in the settlement. You may also have the upper hand as far as being prepared.
You can file for divorce in the traditional manner, each party retaining a lawyer, waiting for the lawyers to complete negotiations, then going before a judge. Another option is to file for the divorce yourself. In the event the parties can reach an agreement as to the division of property, this is a cheaper and easier way to go. Some couples also chose to go through mediation, a process in which both parties go to one arbitrator who listens to both sides and reaches and agreement for them. Both parties are contractually held to the decision, as they would be if it were ordered by a judge. Unless you are hiring separate lawyers to negotiate on your behalf, there is absolutely no advantage to being the one file first for divorce. If the divorce is not going to be amicable and lawyers are going to be involved, then there may be a slight advantage to being the one to make the first move. By consulting a lawyer first, you and counsel can gather information on marital assets and prepare a plan for getting what you want out of the divorce. By meeting with your lawyer before the papers are filed and your spouse is notified, you can be better prepared for the possible battle that may follow the decision to split.
In most states, when you file for divorce there is a waiting period before litigation can begin. Regardless of who files first, this waiting period starts from the date of filing and can span from 30 to 90 days. Most states use this a time for both parties to consider their decision. Generally, the first court date will be set at the end of the specified waiting period. In the event you are the one filing for the divorce, knowing the specified waiting period can help you gauge the amount of time needed to investigate assets that need to be claimed in the divorce negotiations. Depending on the condition of the marriage and financial arrangements, more time maybe needed to gather all necessary information.
Several issues can draw out divorce proceedings. Children born into the marriage add custody and child support issues to the picture. Also, large amounts of properties, stocks, pensions, and other financial roadblocks can also lengthen a divorce if the couple cannot agree on an equitable split. When either side hides assets, argues over custody, or refuses to accept negotiations, negotiations can be extensive.
- Special note: Some states require a couple getting a divorce where children are involved to attend a class on raising children in a split household.
When contemplating divorce, it is important to look into the divorce laws in your particular state. Some states have what is called "divorce a vinculo matrimonii," or absolute divorce. This is where the court returns both parties back to their original single status. Most often in this type of absolute divorce one has to show gross misconduct or wrong doing on the part of their spouse. On the other hand, some states grant a limited divorce, or "divorce a menso et thoro." This is where the court refrains from dissolving the marriage completely, but terminates the co-habitation. This is mostly true in "no-fault" states. These types of divorce are granted when there are simply irreconcilable differences. Before going into a divorce, you need to know the laws of your state, type of divorce it grants, and the legal ramifications of that divorce status.