It’s actually pretty common for clients to ask this question. The social stigma associated with filing for divorce is that you are the one who wants the divorce or you are picking a fight. However, talk to any experienced divorce attorney and they will tell you unless there is a compelling reason to file immediately, it may be a good idea to take time with your filing and get it right, rather than running immediately to the Courthouse out of fear that your spouse may file first.
So, who should file first? You or your spouse? Let’s take a closer look.
The mentality with filing for divorce is, if you file for divorce first, then you’re the one who wanted it and therefore you’re somehow the bad person in this process. This concerns spouses and make them hesitate to file even when they know that the marriage is over and divorce is inevitable. However, if you file first then you do get to control a portion of the process.
The reality is that the Judge does not care who filed first, or even why the Petition was filed. Kentucky is a “no fault” state, so it does not matter why a person wants to get divorced. However, there are tactical advantages with filing first.
You can determine jurisdiction or the venue.
Most people don’t understand these legal concepts, but think of Jurisdiction and Venue as authority for a Court to make its decision. This is especially important to know if you have a spouse who has a residence in another state or another County.
If your spouse lives in another state and files before you, then that state may have jurisdiction over the issues in your divorce action and you may find yourself traveling to another state for Court hearings. If your spouse lives in another County in Kentucky and files first, then that county could be the proper venue for your case to be heard, even if, as a married couple you lived most of your lives in Jefferson County.
If you want the case to be heard in your County, then you do want to be the person that files first.
Danger to the children is a good reason to file for divorce first in Kentucky
If your children are in physical danger or in immediate danger of abduction, waiting to file is foolish. The family court has the power to make immediate orders regarding the children if their health or safety is in danger. Your divorce lawyer must be aggressive in seeking these child custody orders because if your spouse abducts the children or is a threat to their safety or health, waiting has several dangerous consequences including (a) being forced to file in a foreign jurisdiction to try and get the children back because Kentucky or Jefferson County court lost the power to do so or (b) the family court not taking your allegations seriously because you didn’t seek court intervention immediately after the danger to your children was realized.
Protection of assets
Inevitably I will talk to a few people each year that have had a spouse empty all the bank accounts and put the money in an account only the spouse can access. Usually, the warning signs and red flags are there and even if a potential client has been consulted about this, they decided to wait and do nothing. Suddenly, they realize that they wish they had filed so they don’t have to chase down the money. If they had filed, then the Court could have issued orders protecting the assets.
If you see the warning signs or the red flags, then you may want to immediately file. If you are waiting on your spouse to file, then there may be little to divide.
You get to present your case first
The one strategic advantage to filing first is, that if you go to trial, you get to present your case first. This can be a strategic advantage because you will have the opportunity to set the stage for the Court and attempt to get the Judge to see the facts through your lens, rather than your spouse’s lens.
This can make the difference especially if there are facts in your case that you are worried that your spouse will attempt to use against you. If this is your fear, you can present those facts to the Judge, if needed, and explain the situation, rather than responding to an allegation made against you.
Should you file?
It is never an easy decision and it shouldn’t be an easy decision. However, if you fear that your children or your assets may be at risk, then you need to take steps to protect them.
Once you are ready to file, it needs to be done within a reasonable period of time. You can contact me to discuss if filing a Petition is right for you and when that should be done.