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14 Jun. 2012

Are There Any Advantages to Filing for Divorce First?

Posted By The Buncher Law Corporation

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 Corporation today.

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