To File or Not to File?
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One of the most often asked questions at an initial consultation is whether it is better to file first (and therefore be the plaintiff) or file second (and therefore be the defendant).
Some people who are unfamiliar with the legal process instinctively equate plaintiff with the “good guy” and defendant with the “bad guy.” Others express concern about filing first, fearing that a judge will look unfavorably upon them because they initiated the divorce.
Both of these viewpoints are misconceptions, as there is no inherent benefit of being a plaintiff or a defendant. The courts are not concerned with the reasons why people divorce, since only under the most limited circumstances may fault even factor into a court’s decision on substantive issues.
Factors to Decide When to File
This does not mean that there are not legitimate factors to consider when deciding whether to file first, or to wait for one’s spouse to file. There are, in fact, several important, practical considerations.
When all other things are equal, our Hackensack lawyers prefer to be defendant for one very important strategic reason. If the matter does not settle quickly and trial is approaching, it is the plaintiff who must put his or her case on first. Meanwhile, the defendant can sit back and observe the plaintiff put on his or her case first. This requires a great deal of work in a short period of time, and the plaintiff can leverage this in the final round of negotiations that often occur on the eve of trial.
However, all things are not always equal, and there is occasion where it is important to file first. Two specific instances where it is important to file first are:
- Where it is important to establish a cutoff date; and
- Where it is important to gain immediate access to the court.
There are a few reasons why it may be important to secure a cutoff date. First, since the duration of an alimony award in a divorce is generally in correlation to the length of the marriage, and since the length of marriage is measured from date of marriage until the date of the filing of the complaint for divorce, the filing of the length of marriage can serve as a cutoff date than means the difference between a permanent alimony award into a limited duration alimony award.
In addition, the filing of the complaint for divorce can serve as a cutoff date for the purpose of determining what assets and debts will be subject to division between the parties as part of equitable distribution. As a general rule, all assets acquired during the marriage are subject to equitable distribution; and again, “during the marriage” is defined as date of marriage through date of complaint.
The second reason why it may be important to file first is where one’s spouse not doing what he or she is supposed to, and the other party needs to immediately bring this behavior to the attention of the court. It is only through the filing of the complaint for divorce with the help of our lawyers that the matter is assigned a docket number, and therefore assigned a judge. The filing of the complaint allows the party to seek an application for immediate and temporary support, custody, restrictions on the dissipation of assets, and additional relief.
At Laterra & Hodge, LLC, our attorneys in Hackensack will give you all of the pros and cons to filing versus waiting for your specific case. We offer free initial consultations to clients throughout Bergen County. Call (201) 580-2240.