Filing for divorce is an emotional, high-stakes decision—which is why a lot of spouses have a hard time thinking tactically about their divorce. It’s easy to get wrapped up in the turbulent emotions and symbolism of filing for divorce, but the sad truth is that divorce is a legal maneuver, and it needs to be treated that way.
The advantage of getting a lawyer early in the process is your ability to have an objective advisor who can direct your case in a strategic and aggressive manner. Today’s blog discusses one of the first moves our firm makes for our divorce clients: filing first.
Because the “race for the courthouse,” as callous as it might seem, has real consequences for your divorce. Many couples discuss divorce well before either of them choose to file—sometimes because one party thinks the other one isn’t serious about splitting up. Filing first shows that you’re not bluffing and you’re not having a “blow up.” It means that you’re doing this for real, and you mean business.
It also means you get to be front-footed and proactive. If you file first, your attorney and your team of experts, specialists, and investigators are already working on your behalf. This keeps you from the stress of playing catch-up or finding the next immediately-available professional.
Filing first also takes a more accurate snapshot of your financial situation. In some cases, spouses with financial control will spend money or move it around before filing—as a result, when the divorce occurs, their dependent spouse either has to spend time proving their actual financial situation or has to receive less temporary support during the divorce process.
When you file first, it also keeps your spouse from hiding assets. Massachusetts is one of the states that includes an automatic temporary restraining order (ATRO) when divorce papers are served. That prevents both spouses from selling or transferring insurance held for the other spouse, borrowing against your shared property, modifying the beneficiaries of a policy, or destroying assets. Putting a freeze on assets is how you can protect your future—but it only takes effect when your spouse is served papers and no sooner.
When we file, we file as a “contested” divorce initially, in case your spouse responds with hostility. It might feel cynical to think strategically about how to end your marriage, but we assure you—this is all precautionary. Perhaps your spouse will be perfectly agreeable, recognize that this is the end of the road, and choose to work out an agreement that’s mutually beneficial. In that case, we would modify the original filing from “contested” to “uncontested.”
In a perfect world, this would be the outcome of every divorce. Unfortunately, it is far from a perfect world. Our job as attorneys is to protect you from the worst that can happen—we’re not paid to be optimists. That said, we always choose to approach divorces with a collaborative aim initially. After that, the ball is in your spouse’s court.
To sum up, you need to file first. It protects your assets, secures your future, keeps your spouse honest, and puts you in a stronger position from the start. We hope that whoever files first isn’t an issue with your divorce…but if it is, you and your attorney need to be ready.