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Should I file for divorce first?

Making good decisions is an important part of being an adult. However, even in the best of situations, you may find yourself with doubts about how you should proceed in a certain situation. This can be especially true if you are unfamiliar with how a process or circumstance will work out for you and your family. In a situation like that, what can you do to figure out how best to move forward and what steps to take? 

A divorce is a perfect example of a situation where you may be unfamiliar with or concerned about learning how to proceed. Your marriage is the most important relationship that you will ever engage in, but if you begin to understand that a divorce is a necessary step in your life it is normal to feel the conflict between these two realities. Should you stay married to your spouse or should you pursue a divorce that you think is ultimately better for both you and your family? This is a tough question to ask yourself and one whose answer may not be known to you until after you’ve performed a great deal of introspection and examination. 

It is an even tough decision at which to arrive if you and your spouse are still friendly with one another and on good terms. Getting a divorce can seem like an obvious choice for those of you who are in failing marriages with domestic violence, addiction, a loss of romance, or some combination of the three involved. However, if you and your spouse still get along then it can be confusing to think about a divorce. Are you going through a minor rough patch in your marriage or are the concerns regarding your marriage something more significant than that?

Having concerns about the cost of a divorce is also normal. Many people in your position pause or outright never get divorced simply because the financial constraints of a potential divorce are so significant. Consider that a divorce can hit you in the pocketbook from multiple directions. For one, you lose your spouse's income in an immediate sense which can severely hamstring your budget. Paying bills can be tough when you go from a one-income household to a two-income household. 

Next, there are the financial concerns associated with the divorce itself. Paying an attorney is foremost among those concerns but also ranking highly are court costs, time away from work, mediation fees, social study fees, and child support/alimony payments. While some of these costs are temporary and will only be impactful for as long as your case lasts that does not take into consideration spousal maintenance, contractual alimony, and child support which are costs that may last for years after a divorce. 

To recap, a divorce can reduce your household income because you are cutting out your spouse’s income. The rest of your bills do not magically go away just because you have filed for divorce. Life goes on regardless of your plans to divorce your spouse. You also need to consider the costs of your divorce which may increase the expenditures that you are responsible for. This presents a challenging environment for you to file for divorce in, not even considering the record inflation we have been experiencing in our country over the past 18 months. 

If you know that a divorce is something that you should be considering but feel like you are stuck between a rock and a hard place, then please consider contacting the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. We are proud of our commitment to our clients and willingness to go above and beyond to serve them. A consultation is a great way for you to see through the dark clouds that may be hindering your vision so that you can better see the bright future that awaits you after the divorce is done and over with. 

Filing first in a divorce- does it matter who wins the race?

When you are facing a circumstance the likes of which you have never faced before it may be a thought that you must try and gain every advantage possible over your spouse when it comes to your case. You may have heard from friends or family members how stressful and difficult a divorce can be. As such, any advantage that you may gain over your spouse that is legal and ethical may be worth pursuing. Filing for divorce before your spouse can beat you to the punch may seem like one of those advantages that you can gain from the outset of your case which can make a tremendous difference for you. 

Truthfully, however, there is no real advantage in being the first spouse to file for your divorce. The law does not favor the party who files first, the judge will not give you preferential treatment and your spouse will not suffer a great deal because you filed your paperwork with the court before he or she could. Still, there may be some benefits that you can take into consideration that could be of value to you, even if there is no explicit advantage in being the Petitioner in your divorce. 

The advantages that we are going to discuss are almost all circumstantial. This means that depending upon the circumstances of your case you may see some benefit to filing first or none. We hope that by reading through the material contained in today's article you can better determine for yourself whether it pays for you to race to the courthouse (figuratively speaking) and file for divorce before your spouse can do so. 

What are the advantages of filing first for divorce?

There are several reasons why it may be advantageous for you to file first for divorce. It goes without saying that if you are the party to file first for divorce you are the person who can establish the tone for the case. An Original Petition for Divorce allows you to make allegations and establish what you believe to be the cause (grounds) for divorce as well as the type of relief you are seeking from the court in the divorce. Rather than being reactive, like your spouse will have to be, you will be able to be proactive and anticipate the future happenings within the case. 

You can let the court know what you think is important in your case. It could be that your spouse has caused the divorce due to adultery, wasting of community assets, or even spousal abuse. You can set the record straight about these issues before your spouse can get a word in edgewise. Your spouse will be able to do the same by filing a counterpetition if he chooses, but if you file first for divorce, you can establish the tone and tenor for the case. By the time a divorce is done and over with this may not be the most significant advantage in a divorce but at the outset of a divorce, it can be important at least from a psychological perspective. 

Worried about your divorce taking a long time? File first

The toughest step on a journey of a thousand miles is the first. Meaning: starting a long journey can be the most difficult part. Simply working up the gumption to file for divorce can often be the hardest part of the entire case. You may have been going back and forth on whether to file for divorce for many months or even years. Every time that you thought you had finally worked up the courage to file, you may have rationalized your way out of doing so. This can end up being an extremely frustrating cycle to put yourself in going back and forth between filing for divorce, not filing, rationalizing your way out of the case only to second guess yourself and put yourself back on a path towards considering divorce once again. 

Paint or get off the ladder, as our grandfathers may have said. Filing for divorce ends speculation that you either will or will not file for divorce. Once you file for divorce you are planting the flag which symbolizes your willingness to take a risk and try to better your life and that of your children. You can file your divorce petition, request temporary orders, and even submit requests for discovery upon your spouse. All of this can be done simply by filing an Original Petition for Divorce. 

Again, your spouse will have an opportunity to do all these things towards you that we just finished discussing. However, there is a psychological and emotional benefit to your being able to walk through these steps first and put the ball in your spouse’s court rather than having to be on the defensive to your spouse’s pleadings from the very beginning of a case. 

What sort of help do you need? Ask and ye shall (possibly) receive 

You may need several different things from a court at the beginning of your divorce. Whether it helps pay bills, protection from your spouse, protection for your children, child support, spousal support, or something else you can request this relief in your Original Petition for Divorce but also in a motion for temporary orders. Temporary orders give you and your spouse your marching orders for the divorce. These orders will help establish temporary possession schedules for your children with each parent as well as help to determine the conservatorship rights and duties that both you and your co-parent share about your child. 

As we talked about earlier today, the other responsibilities (bills) that you have in your life are not going to disappear just because you have filed for divorce. On the contrary, you will probably find out that the costs associated with your life will only increase now that you have filed for divorce. With this backdrop in place, filing for divorce will allow you to better address those needs. 

Protective Orders and divorce

Temporary orders or even a protective order cannot be obtained until you file for divorce. Without temporary orders, your spouse can move with the children wherever she would like. She can drain your bank account and not return any of the money. There are almost limitless negative consequences to your spouse being able to do what they would like before you file for divorce. 

However, your concerns can be put in check once you file for divorce. Your spouse may find that a geographic restriction is put in place during the divorce which limits where your children can live. Separate provisions in temporary orders may require your spouse to pay child support. As you can already see, it does not pay to sit around and wait for things to improve in your marriage. If your marriage is headed for a divorce, and your spouse is not willing to improve it then you have a clear sign that a divorce may be necessary and in the best interests of all parties. 

A protective order can last for up to two years and would list out the specific behaviors that are prohibited under the order. It could be that you want your spouse to be prevented from taking your child out of school or daycare. Or your spouse may be coming to your home at all hours of the night and bothering you and your family. Including provisions in a protective order that bars your spouse from engaging in behavior like this can be a big advantage for you and your family to have in your back pockets. 

What are the disadvantages of filing for divorce first?

The other side of the coin is that there may be disadvantages to filing first for divorce. The petitioner will be responsible for paying the filing fees for an original divorce petition. These costs are almost always more significant than the costs of filing an Answer or counterpetition.  Paying a process server or constable to serve your spouse with a citation is another cost that your spouse will not be responsible for because you took it upon yourself to file first. 

Why you need an experienced family law attorney to assist you in your divorce

The first step in filing for divorce is not filing the paperwork with a county or district clerk. Rather, the first step that you should undertake in filing for divorce is to contact one of the experienced family law attorneys with the Law Office of Bryan Fagan to learn more about your case and your circumstances. 

It is important for you to feel comfortable with the attorney who you hire. While you cannot expect to feel completely comfortable with any attorney that you interview the first time around, it is reasonable for you to want to hire a lawyer that puts your mind at ease when it comes to your case. This is the person that is going to be helping you through the most important few months of your life. Make sure that you have put some thought into who you are hiring and why you have decided to do so. 

Experience is important. You can hire a lawyer who went to the fanciest law school, has the nicest office, and is a sharp dresser. However, nothing can act as a substitute for experience. The more experienced your attorney is the greater the likelihood that he or she has helped a person in your shoes before. This means that he or she can draw from that experience to assist you in problem-solving your way through your divorce, no matter what you are going through. 

Talk with the attorney in consultation and allow him or her to give responses back to you. You can learn a lot about a person based on how they address you and how well they listen. Good listeners tend to be clear thinkers and people with an eye for detail. Allow your attorney to give their thoughts in this consultation and you can see how the attorney works their way through problems and can help you arrive at solutions to the problems that you are facing. 

Keep in mind that an attorney’s job is not to make decisions for you. Rather, an attorney is there to help teach you about the law and how the law impacts your circumstances. A well-educated client makes the best decisions for themselves. Your attorney should not be pushy but should be available to you for answering questions and providing feedback. The more dialogue you can have with your attorney the better this is for developing a relationship with him or her based on trust. That trust can take you far in a divorce no matter what you are facing in terms of circumstances. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case. 

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