Should YOU Make the First Move?

Often, people who know a divorce is coming ask me whether they should file first, or whether they should let their spouse file first.  My answer is “It depends.”

If the divorce is non-contested, if you and your spouse get along well and you know with certainty that you will reach an amicable, peaceful agreement without the input of court-appointed evaluators or a judge, then it probably does not make any difference who files first. In that case though, you need to ask yourself why you are getting divorced in the first place.

But, if you think that there might be a significant disagreement about custody, parenting time, or spousal support, you should probably file first.  There are several reasons for this.  One reason is credibility.  Another reason is that you get to determine when the “snapshot” of relevant facts occurs.  Both of these are important in divorce litigation.

Say, for example, that your spouse wants to get you out of the house promptly.  Ordinarily, this can be difficult to do in a divorce proceeding.  And, maybe you do not want to move.  Maybe you are expecting that the house will be awarded to you.

Well, your spouse can make up false claims of abuse.  He or she can embellish a description of a normal argument to make you sound threatening and abusive.  If you have already served and filed a divorce petition, this embellishment will most likely look like a reaction to what you have done.  In other words, it is more likely to be seen as positioning, and discounted.

What about the “snapshot” of the facts.  Well, if your spouse does not do very much to help out with the kids, but he or she knows that the divorce is coming in the future, he or she will try to do things to make it look like she is a more caring parenting than he or she is in reality.  He or she will start taking the kids to the doctor, to school, to daycare, and generally try to look like a Super Parent.

This isn’t necessarily a bad thing.  The problem is that if it is positioning for a divorce proceeding, it generally does not last after the divorce is final.  This is where a snapshot of facts is a handy point of reference.  If you start the divorce proceeding sooner, the spouse has less time to create the Super Parent facade.

Of course, you should only start a divorce proceeding when you are ready, and when you are certain that there is no hope for saving the marriage.  Postponing this decision does entail some risk, and you need to weigh the risk against the benefits and make a decision.  Ultimately, you are the only person who can make this decision.

For a free divorce case analysis, call Minnetonka attorney Daniel Fiskum at (952) 270-7700.

Daniel Fiskum is a Minnesota divorce attorney who has been practicing since 1992. He is a graduate of the University of Minnesota and has been named a "Super Lawyer" by the Minnesota Journal of Law and Politics. Mr. Fiskum is currently writing a book for attorneys and non-attorneys entitled "The Streetfighter's Guide to Divorce," which is scheduled for publication in May, 2010. Many of his blog entries will appear in the book. You may contact attorney Fiskum directly at (952) 270-7700. His office is located in the Carlson Towers in Minnetonka, Minnesota. The Fiskum Law website is found at www.fiskumlaw.com.

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