Ask A Lawyer: What Are The Benefits/Dangers Of Filing First?

Question:

I have recently separated from my wife. She is staying at the family home for now, and we have basically agreed on child support, and the distribution of certain belongings.

What would be your advice on how I should proceed with this situation legally in order to better protect myself. There is nothing in writing up to now, and no attorneys are involved. I want as much time with the kids as possible and don’t want to be overburdened with maintenance.  What are the benefits/dangers of filing for divorce and taking the initiative to move this along?

 

Answer:

You should consult experienced divorce attorneys, such as Cordell & Cordell, to review your situation and advise you as to the possible issues, strategies, and outcomes.  While proceeding with a dissolution of marriage is a major decision, if you have determined that the marriage is irreparably broken, delays in proceeding with dissolving the marriage may result in unanticipated consequences.  You and your wife continue to accrue assets and debts which may have to be divided in any divorce.  Conduct during the period of separation may create issues as to liabilities to each other for misuse of funds or other property, referred to as dissipation.  Your obligation for maintenance (support) of your wife may be influenced by any changes in her employability status prior to the entry of the divorce, such as disability, bankruptcy, or her incurring substantial debts.

While in certain cases delay may be warranted to vest benefits, clear up financial issues, prod your wife to obtain employment, or prepare the children for the dissolution, these situations are limited and proceeding with filing for divorce or presenting a proposed agreed divorce is generally recommended.  The method by which the divorce is commenced may be structured to minimize confrontation or, by necessity, may require a more aggressive strategy to protect your financial and parental interests.  Your attorney will review the options applicable to your situation.

 

Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.

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2 comments on “Ask A Lawyer: What Are The Benefits/Dangers Of Filing First?

    Limitations on Collaborative Divorce
    As with the resolution of any dispute, counseling or mediation requires parties with a common goal and, for the most part, a common perspective as to the facts and issues. Unfortunately, many divorces result from the parties not sharing common goals and perspectives. For the divorce that truly is an amicable parting of the ways, a mutual recognition that the relationship has just faded away or they have “fallen out of love”, a collaborative process may be helpful and many courts require some form of mediation during the divorce process. However, the final divorce judgment is a legal contract, whether by agreement or imposed by a judge, which requires an experienced advocate on your side to obtain the desired results and limit the unintended consequences.

    Filing first may, indeed, generate a response from the opposing party, and an experienced legal counsel will review the pros and cons of filing with a client. Our experience is that filing first is generally desired to get matters on course. Filing first doesn’t necessarily mean firing the first shot; it may be needed to preserve the status quo or to assure you are credited for your support of your family and have time with your children.

    As to the cost of a divorce being affected by filing first, the costs of divorce vary greatly by area and details of the divorce. While divorce can be expensive to the clients, the referenced average cost of $80,000 is much more that we experience in our Illinois offices. The cost of not filing promptly and losing assets or time with children must be weighed against the cost of proceeding.

    Not an Attorney
    If you must divorce, generally it is better to file first. I wish you wouldn’t though. Would be much better to seek out faith based conseling and mediation. Better for the children for certain. I don’t care what you have been paying in “child support” so far, if it goes to the child support enforcement agency, well, they can claim it was all a gift, then go after you from the time you seperated. As with all things in family court, filing first has it’s advantages and disadvantages. I look at it like a dodge ball game. Would you rather be throwing the ball first? or having it thrown at you first? The downside in filing first is you most likely will make her dig in her heels and and be very uncooperative which = more attorney expense. The best way is actually mediation. At the very least seek out a colaborative lawyer. There are a few around, and it isn’t as expensive as contacting cordell and cordell. Traditional divorce costs on an average of 80,0000. Anything else is much cheaper and less emotionaly draining, and stressful. My advice is to try and find common ground, work out your problems, your kids need you. If that is not an option, then use the Golden Rule. When you file first, treat your wife the way you would like to be treated.

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