Is it advantageous to file for divorce before your spouse?

If you and your spouse have separated or agreed to a divorce, one of the two of you will have to bite the bullet and file for divorce sooner or later.

Doing so may be no simple task, you’ll need to make some difficult decisions and gather a lot of documentation. Is going through these steps worth the hassle? Are you better off getting your spouse to file or are is there a payoff for initiating a divorce first?

Being prepared

Divorce involves dividing nearly everything you own and arranging a custody order if you have children — arguably some of the biggest, most life-changing decisions you’ll have to make. These are not issues to procrastinate.

The first step to resolving an issue is to put the measures in place to handle it. Filing for divorce first is advantageous in that it requires you to prepare by:

  • Collecting necessary documentation — copies of relevant financial and legal documents, such as tax returns, vehicle registrations, insurance policies, bank statements, paychecks, real estate records, your will, retirement account statements and more
  • Hiring an attorney — In some cases, it’s best to hire your attorney first because if your spouse has a consultation with other attorneys in the area, they will not be able to serve you due to their relationship with your spouse (even if they are not hired by your spouse)
  • The best strategy — Acquiring the services of an attorney beforehand will also allow you and your lawyer time to develop a strategy that outlines how you and your spouse can work through the divorce and what your priorities and expectations should be for the process

Maintain access to your bank account

In less agreeable divorces, your spouse may take, spend or hide assets if prior to the divorce. Under California law, you may file for temporary emergency orders that can protect your marital financial assets immediately and last until the divorce has been settled.

If circumstances do not permit an emergency order, you’ll still be in a better place to save for the divorce process, open a credit card in your name and take other steps to prepare yourself financially for this transition.

Custody of your children

In some circumstances, you may also request a temporary emergency order to establish temporary custody of your children. However, these are typically issued in situations where the other parent’s involvement with the children could be dangerous.

You should speak to a lawyer about whether your specific case may have grounds for a judge to grant you a temporary emergency order.

An attorney can also help provide guidance on other related divorce issues, such as what your financial outcome might look like, how long the process may take, which custody plans may be best for your unique circumstances and more.

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