This post is part of a continuing series to help you through a basic primer
on family law and what's in the court's powers to decide. Last
week, I posted
definitions and parameters of Visitation and how it affects support. In this post, I will go into a little detail
about one of the most puzzling questions surrounding divorce filings.
Divorce attorneys are often asked if there is a tactical advantage to filing for
divorce first. I get this question, especially in cases when a spouse has had
an affair. To answer the question succinctly, there is absolutely no advantage
in filing for divorce first. None whatsoever. However, there is a huge
disadvantage in rushing into a filing unprepared. I'll deal with those
issues in future posts.
First, remember that California is a No-Fault Divorce state. What this
means is that regardless of fault - and even in cases where adultery is
proven - no party is asked to prove the other spouse did anything wrong
nor would the party who had the affair be penalized with less property
or more/less support.
In family law, there is a petitioner and a respondent. The petitioner is
the party who files first and the respondent is the spouse of that party.
However, the paperwork filed by the Petitioner and Respondent is identical.
The purpose of these documents is to get a date set by the court and start
negotiations between parties. And as they say in the halls of diplomacy
and legal proceedings, the negotiating table has equal sides.
Once you file for divorce or legal separation and you serve the petition
on the opposing party or automatic restraining orders go into place to
protect both parties. These are called ATRO's (an acronym for "Automatic
Temporary Restraining Order"). These are listed on the summons which
is served with the petition for dissolution. The ATRO's provide for
a few things:
These rules are imposed to preserve the community estate until the court
figures out how it should be divided. Thus a reason why you might want
to file a petition for dissolution is to receive the benefit of the ATRO's.
A final consideration goes to the duration of
spousal support if you are the higher earning party and our on the cusp of having a 10
yr marriage you may wish to file a petition for dissolution prior to hitting
the 10-year mark as your marriage will become one of long term. Under
long-term marriages spousal support often referred to by others as alimony
can continue potentially for an indefinite period of time. For marriages,
less than 10 years the court will normally award spousal support for half
the length of the marriage with various exceptions.
So, as you can see, any advantage that may be borne from filing first is
most likely an emotional one. In California courts, all parties have equal
say and consideration. As a reminder, I strongly advise that you get direct
consultation from your attorney for these and other situations.
Questions? Get in touch with an Irvine divorce lawyer at The Buncher Law