First to File For Divorce: “Timing is Everything”

After a person makes the tough choice to proceed with a divorce, he or she often inquires as to whether it or not it will make a difference if they are the first to file their petition for divorce. As the saying goes, “timing is everything”, and this is often true when making a decision on the right time to file for divorce.

 From a legal perspective, there are several reasons why a person may be advised to file for divorce on an expedited basis making that party the first to file. The date that a petition for dissolution of marriage is filed sets the “cut off” date for determining whether assets and/or liabilities are marital or non-marital. By way of example, a person may be expecting a large sum of money, and he or she wants to avoid sharing the sum of money with their soon-to-be former spouse. Generally,  the anticipated sum of money received after the date of filing would be that spouse’s non-marital monies unless it had some marital ties or came from marital efforts. For example, if a person received a bonus that was awarded based upon retention versus performance, the person’s retention bonus, if received post-filing, would be that spouse’s non-marital monies.  Alternatively, if it was based on work performance that occurred during the marriage, it would be marital.

Another reason a spouse may be in a rush to file is to avoid having their marriage reach an anniversary that would put the length of their marriage in a category that may give rise to a certain form of alimony. The length of marriage for purposes of the Florida alimony statute is the period of time from the date of marriage until the date that the petition is filed. So, for example, a person who has been married to his spouse for just under 17 years might be rushed to file before the 17-year anniversary, because marriage that is greater than 17 years is considered to be a long-term marriage where permanent periodic alimony may be awarded if the facts of the case make it appropriate to do so. The length of marriage alone is not an absolute trigger for a different kind of alimony, instead it is a factor to consider.  These are just a few legal ramifications for pulling the trigger to file.

 In addition to certain legal issues associated with the timing of filing, however,  there are also some emotional issues involved with being the first to file, including the resulting and often highly emotional impact that it will have on the other spouse.  The spouse that is on the receiving end may use it against the spouse that filed by claiming, for example, “you initiated the divorce by filing first, so you are the one that wanted it.” While this may appear childish, it is certainly not uncommon for a spouse to make these claims, and such statements, and the emotions behind them often play a part in how the divorce action proceeds.

 As a result, practitioners will often weigh the legal issues against the emotional issues when assisting a party with making a determination as to whether that spouse should be the first to file, and often the legal issues will prevail. Nevertheless, it is an important decision that should be vetted with an attorney specializing in the area of Family Law.