When a marriage is breaking down, people often begin to consider whether they should file for divorce prior to their spouse. You should always first consider whether the marriage can be preserved, through counseling or otherwise. However, if these efforts are not successful, the following information may help you decide when to file.
There are certain circumstances where filing first might be a good idea. If the parties have separated, and they want to attempt to obtain a temporary order for primary custody of the minor children, they may file first and seek an ex-parte order. An “ex-parte” order is one that is entered by the Court without notifying the other side or conducting a hearing. Although the other side has a right to file Objections to the Ex-Parte Order, and have a hearing, the Ex-Parte Order can potentially gain a leg up on the issue of custody.
Many courts are reluctant to issue ex-parte orders regarding the minor children because they do not want to give the other side an advantage without having the opportunity to hear both sides. However, the possibility of such an ex-parte order is present.
By the same token, a party may want to file first to avoid the possibility of an ex-parte order being issued without notice. If the parties have separated, one spouse might want to file the initial pleadings, simply out of concern that the other spouse could file and seek an ex-parte order.
Other potential ex-parte orders involve a restraint against transferring assets or accumulating debt, or an order to ensure that the parties maintain the marital bills. Courts often enter these Orders, as opposed to custody Orders. If you have a spouse that has been controlling or dishonest about assets, filing first will give you the opportunity to get these type of orders entered quickly, to prevent assets being transferred.
If you are considering divorce, and want to discuss your specific circumstances, give us a call at the Law Offices of Gregory Dean.