One of the questions that we are frequently asked is “Does it matter who files first in a divorce case?” The answer is a somewhat complicated. It rarely makes a difference in the final outcome of a divorce case, but it can make a difference in the short-term while the case is pending.
A better way to examine this issue is to consider the advantages gained by the first person to file in a South Carolina divorce case:
- Choosing the right attorney :: If you are the party choosing to file the action, you will have time to meet with the best attorneys in your area and then choose the right one to handle your case. On the other hand, if you get served with a divorce case filed by your spouse, your ability to select an attorney may be limited by the time you have in which to respond. Also, your spouse may have already consulted with one of more of your desired attorneys, which will give them a conflict of interest and leave them unable to handle your case.
- Obtaining necessary financial information :: You might be surprised by the types and amount of information that you will need to collect for your divorce case. These may include income tax returns, real estate documents, health and life insurance information, and statements for all checking, savings, investment, retirement, and credit card accounts. For most people, this takes some time. If your spouse was secretive or typically handles your finances, it may take much longer.
- Preparing financially :: Divorces are a time of considerable financial change, as going from one household to two with the same incomes can be a challenge. Someone must move into a new residence, which may require one or both spouses to purchase new items for their respective homes. Also, you will need money to hire an attorney, and because you typically get what you pay for, you may need to pay a considerable retainer to hire the best attorney for your case. Knowing that a divorce is coming will allow you some time to save or make other arrangements to address these financial hurdles.
- Preventing misconduct by your spouse :: The sad fact is that some spouses lie, and it happens much more often in divorce cases than people might think. These lies occur in several areas, but one of the main ones is attempting to hide or transfer assets. However, if you do your homework before your spouse knows that a divorce is imminent, you may significantly limit his/her ability to hide assets from you or take other steps to diminish their value.
- Minimizing the impact on the children :: If you have children, you will most likely want to consider the impact that a divorce will have on their lives. Some children benefit from seeing a counselor after separation, and sometimes even before it gets to that point. Knowing that a divorce is on the horizon enables you to consider all of the people that you should notify to help minimize the impact on your children, which might include their teachers, their friends’ parents, your pastor, etc.
- Determining the timeline :: The person that files the case will know when the first hearing is scheduled, and more importantly, when the other side will be served with notice of the divorce case. In South Carolina, the one that files may have several weeks (or more) notice of an upcoming temporary hearing, whereas the other side is only required to be given one week’s notice. This notice can make a tremendous difference in the ability to prepare for such an important hearing.
- Presenting information at hearings :: The party that files first will get to make its presentation first at most hearings. Therefore, a skilled attorney can take advantage of the opportunity to make the first impression upon your judge, to try to emphasize your key points and to persuade the Court to grant the relief you are seeking. Most experienced attorneys would always choose to speak first at every hearing if given the choice.
As with most issues in Family Court, the facts of your particular case will determine your best course of action. It’s important to understand that every case is different, and there is no “one size fits all” solution. If you suspect that you are facing a divorce, you should schedule a time to meet with an experienced family law attorney to discuss your options.
