To File For Divorce First or Not

For most, the decision to file for divorce is not easy. Filing for divorce is never a happy moment, even if you have felt that your marriage is over for a while. The act of filing for the divorce means that the marriage is over and all thoughts you had of working out your marital problems have long since gone by the wayside. If you have gotten to that point and are certain that your marriage cannot be salvaged, then filing for divorce is your next step. Does it matter who files for the divorce first? The short answer is, “not really.” Technically, it doesn’t matter who files first. The courts and judge typically look at each person’s information equally. However, as with most cases, the answer is more like, “It depends.” There can be advantages and disadvantages of filing first.

Personally, when someone asks me if I want to hear the good news or the bad news first, I always want to hear the bad news first, so I have something to look forward to after hearing the bad news. With that said, I’ll start with the bad news or the disadvantages of being the one to file first.

• You must “show your hand” first meaning if you file for divorce, you typically have to list what you expect to get out of the settlement. Doing so allows your soon-to-be-ex to know exactly what you want and allows him or her time to come up with a plan to negotiate for what they want.
• The filer is often required to pay the filing fees.
• In many cases, although the filer knows deep down the marriage is over and divorce is inevitable, there can be a heightened sense of guilt as the filer is officially saying that the marriage is over.
• It is public record as to who files for divorce; some clients are uncomfortable with letting the world know he or she filed for divorce.

Now for the good news on the advantages of filing for divorce first.

• Filing first can give you the upper hand, as you will have time prior to filing to retain an attorney for proper legal representation. Hiring an attorney before you file allows you to gather the appropriate documents and papers your legal council will need. It is usually easier to gather this paperwork before filing.
• Filing for divorce can help get the financial assistance from your spouse that you need. Officially, filing brings the courts into the matter to rule on temporary support, child custody, and visitation.

Filing for divorce is the beginning of the process. Even if the divorce isn’t contested, Arkansas law requires a 30-day waiting period. The judge will wait 30 days from the date you file your Complaint for Divorce to grant the divorce. Therefore, 30 days is the best-case scenario.

What happens if you file for divorce but attempts to serve him or her have failed? The court will require you to prove that you have made “diligent attempts” to serve your spouse. The court’s definition of diligent attempts is that you sent the divorce papers to the last known place he or she was living. The method by which the papers were sent is important to the court as well. The papers will need to be sent by certified mail, restricted delivery with return receipt requested or have a process server go to your spouse’s last known place of residence to attempt delivery. Once you have proven that all diligent attempts have failed, you can file a petition for a warning order, which is a public notice in the newspaper in the county where you filed for divorce.

Kevin Hickey Law Partners understands the painful impact that divorce can have on not only the individual but also the entire family. We are here for you through the entire process, whether that be helping you file for divorce or helping you after your spouse has filed for divorce. We are here for you. Each case is unique and requires attention to every detail. Our professional family law attorneys are ready to help you. Call today for your consultation.