NJ Divorce Process 101: Does it Matter Who Files for Divorce First?

For anyone who is thinking about ending their marriage, the NJ divorce process can feel daunting. Every divorce is different, and one of the biggest questions people have is whether it makes a difference as to who files for divorce first.

There are a few advantages for the person who decides to file first. If you have not discussed the possibility of divorce with your spouse, then you will probably be able to speak to your choice of local attorneys in the area about the process. Chances are, your spouse has not consulted with anyone. If they have, then that attorney would not be able to speak with you about your case, thanks to conflict of interest rules that lawyers must abide by. However, you should not set up consultations with attorneys for the mere purpose of making them inaccessible to your spouse.

This same principle applies to various experts that might be involved, particularly in high-value divorce cases or heavily contested custody matters. You might need experts like financial planners, forensic accountants or psychologists. You will get ‘first pick' if you decide to file first. In comparison, if you are served with divorce papers instead of filing first, you will only have 35 days to find a good lawyer, pay them, and respond to the suit.

You also will have the opportunity to gather up all the necessary documentation you may need for your case without your spouse knowing. Sometimes, once a divorce starts, it can be difficult to obtain the required paperwork, especially if your spouse is not cooperative. In most cases, you will eventually be able to get the paperwork through the process of discovery. However, this can be a fairly expensive and time-consuming process. If your spouse drags their feet, then it might require an order from the court to get them to hand over paperwork. When you're considering a divorce, find and make copies of everything you think you may need. A great way to keep a record is to scan and upload what you will need to a computer that your spouse does not have access to. Some of the most important items you should get are tax returns from the last few years, household bills, mortgage statements, bank statements, proof of insurance (including health insurance), deeds and titles of ownership.

Another advantage of filing first is that you can control the timing of the suit. Once the lawsuit begins, the court will primarily be setting hearings, discovery timelines and deadlines for mediation before trial. But when filing first, you will be in a better position to predict when these hearings will happen and have that much more control over when to initiate the process. You will be able to take various things under consideration, such as whether or not the children are in school, delaying large financial outlays (such as purchasing real estate), and overall having more control over the timeline of the case. This can be significantly positive for your emotional health as well. You will be active rather than reactive and caught on heels. So often, divorces feel unmanageable and overwhelming. By being able to exert some control in this way, even if only at the outset, it can go a long way to making you feel empowered in what can feel like an unwieldy situation.

You will also have the benefit of prior knowledge and the ability to save for attorney's fees and other living expenses. If you are able to do so, before you file, take note of your basic daily living expenses and create an estimated budget that you will need during the divorce process. You should also start creating your own accounts that your spouse will not have access to. Whether it is opening a credit card in your own name or starting a checking or savings account to set aside certain money, this will be of great benefit to you once the case gets started. As the adage goes, forewarned is forearmed, meaning you will be much more prepared to go through the NJ divorce process than your spouse may be.

An obvious benefit to filing first also means that you might get to choose where the divorce proceeds, depending on the grounds for divorce. If you file for a no-fault divorce, you can file in the county where you live. If you and your spouse have recently separated and are living in different parts of the state, this can be of great benefit to you. Going to court in a different county can increase expenses and cost you valuable time. If you file for divorce and name a specific ground for divorce, then you must file in the county where the grounds actually occurred. So, if your spouse committed adultery a few months ago and you have moved away to another county, you will still need to file for divorce in the county where the adultery occurred. That is why a no-fault divorce might be a better option for you. However, you should always seek out the advice of an experienced family lawyer to determine the best strategy for your particular circumstances.

While there are some advantages to filing first, you should not rush into a divorce. If you are filing for divorce to serve paperwork on your spouse in order to spite them or embarrass them while at work, you should re-evaluate. Filing first is not going to make or break your case, so do not despair if you do not beat your spouse to the courthouse.

If you have questions about getting started with the NJ divorce process, contact the law offices of Peter Van Aulen for a free, initial consultation at (201) 845 – 7400.

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