To File or Not To File: The Strategic and Life-Changing Dilemma

Many years ago the age old question of whether a client should file first was often easily answered as many states provided a preference or an incentive to filing first. Many states, where custody was at issue, held that the person filing first AND who had actual physical custody of the children at the time of the filing of the petition was to remain the primary physical parent pending further order of court.

This type of law typically made any divorce a “race to the courthouse” and a “tug of war” with the children until filing. I recall many times advising my clients to go grab the children from school while I waited at the courthouse for their call to then proceed with filing.

This typically ensured command in the case in any battle for custody. Those times were often chaotic and truly a situation which generally was not in the children’s best interests as mom and dad raced to obtain actual physical custody just to obtain a short-term legal advantage. Today, the majority of jurisdictions have since removed such legal advantage and replaced the “race to the courthouse” laws with zero legal advantage provisions. By this I mean that substantively most jurisdictions provide no legal advantage to filing first in divorce cases.

There typically remains no provision declaring one parent or the other as “physical custodian” at filing. Rather, such determination is now rested with the court to determine the children’s best interests upon presentation of testimony and evidence. However, this is not to suggest that a client should not consider filing first.

While the legal advantages to filing first have been removed in the majority of jurisdictions, there remains a strategic advantage in nearly all matters. The life changing dilemma, however, is the ultimate decision to file for divorce, thereby ending your marriage, versus the strategic legal advantage of becoming the Plaintiff or Petitioner. What is this strategic advantage?

Consider this. If you are being accused of any misconduct in your marriage, be it adultery, physical or mental abuse, drug or alcohol abuse, dissipation of assets or the infamous “lousy husband” strategy, then my preference is ALWAYS, that my client file first, but only once the client has concluded that their marriage is irretrievably broken. Why? Imagine you decide to allow your wife to file. The matter is not settled and is tried to the court. The first day of the trial of your case will almost always be consumed by your wife taking the stand, crying, and advising the court in gruesome and explicit detail as to why she was “forced” to file for divorce from an overbearing, cheating and abusive husband who was not and is not there for his family.

Sound familiar? It gets worse. As you sit at the counsel table listening to what you know are half-truths, complete untruths and distortions, you will have no opportunity to refute and/or defend yourself until the potential damage is already done. Sure, your attorney can object until he is blue in the face in a concerted effort to keep the court from reaching a conclusion. But, keep this in mind, the judge (which is the jury of your peers) is often derailed by emotion and may have the tendency to reach conclusions within the first half of the trial. By first half, I mean the half before you have even begun presenting your evidence. This can be fatal to your case.

I have had many an occasion where my client failed to file first and I could see the judge typing his order on his laptop BEFORE I EVEN BEGAN MY CLIENT’S CASE! We are all human and influenced by emotion quickly. Representing men is about appearance and presentation. As a result, filing first (after you have concluded that your marriage is broken) is a strategic necessity, not a luxury. Make certain you discuss filing first with your attorney early in your decision-making process over whether your marriage is irretrievably broken. It truly is a life-changing dilemma.

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