It may be a better option for you to file first.
“Should I file first?” is by far the question that new clients ask me the most. This question comes up in almost every consult. I’m not sure exactly why it is so common. But, in general, if both parties want the divorce and both are contemplating filing, then it doesn’t really matter who files first. If you file first, then your spouse can simply file a counter petition, which asks for the exact same relief that you request in your petition for dissolution of marriage. In general, your ultimate legal outcome will not be affected by who files first. A judge will not care which party filed first. I have never had a judge bring up which party filed first in any of my cases. However, there may be a few subtle advantages for filing first that you might want to consider.
One, if you file first, you set the tone of the case and you now control the numerous deadlines to respond. Setting the tone of a case can be very important. If you wish to be amicable and seek to resolve your family law issues with your spouse, then it may be beneficial to file first and set an amicable tone. You can avoid quite a bit of unnecessary legal fees if you begin the case with an amicable tone. However, your case may require an aggressive approach from the beginning. An aggressive, zealous approach may be necessary in your family law case and may help ensure that your legal rights are protected. There are numerous benefits from being aggressive from the beginning. If you file first, you get to dictate what tone your case will be and hopefully ensure the correct outcome.
Additionally, the day you file a case with the clerk of court is a very important date used to determine assets and liabilities. The date you file for divorce is usually the date the court uses to determine what is a marital and what is a non-marital asset or liability. In general, any asset or debt acquired after the date of filing your dissolution of marriage case will be considered non-marital property and will not be subject to equitable distribution. Which means your spouse cannot touch it. (There are definitely exceptions to this general rule and you should discuss the specifics of your case carefully with your Tampa Bay divorce lawyer). So, if you file on a certain date, and your spouse opens up a credit card or incurs a debt after that date of filing, then you are not responsible for that debt. However, if you wait to file and the spouse incurs debt prior to anyone filing for dissolution of marriage, you may very well be responsible for that debt. It will more than likely be considered a marital debt because a divorce case has not yet been filed with the clerk of court. There are obviously exceptions to every rule and you should discuss your case with an experienced divorce lawyer. But, in general, if you file first, you get to determine what the very important date of filing will be in your case.
The date you file the divorce papers with the clerk of court, is also the date the court uses to determine the length of your marriage. The length of your marriage may be important in considering what type of alimony will be awarded in your case. It may also affect some forms of military retirement and other spousal benefits that are awarded to military spouses. If you file first, then you get to control this date. It could mean the difference between the forms of alimony, if any, that may be awarded.
If you are considering filing a divorce or require legal assistance in other areas of Family Law you may always contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected].