Divorce – What Comes First?

During the initial divorce consultation, clients have numerous questions, and in all likelihood, more questions than they can remember to ask. For many clients, their initial divorce consultation with a family law attorney is their first interaction with any sort of attorney, and the experience can be a daunting and overwhelming one. After all, how can you be sure you asked the “right” questions? What if you can’t remember everything you learned? With everything that needs to be done – divorce, custody, support, equitable distribution, etc., where do you begin? For purposes of this blog, let’s start with that last question.

The beginning of a divorce case is different for everyone, and it depends on the individual’s particular set of circumstances. Some common scenarios are as follows:

  • For someone with no children and no spousal support or property issues, filing a divorce complaint is the likely first step in the process, because the main objective is to work through the procedural requirements of a divorce.
  • For someone with children but no spousal support or property issues, the divorce itself may be a secondary issue, because the initial focus would be on the children, who are the most important product of the parties’ marriage. Rather than rushing to file the divorce complaint, which can be done at any time, the right approach may be to work out the custody arrangements and the resulting support obligation first. Being served with a divorce complaint, even if just by way of a receiving certified mail, can be an emotionally charged event, which can shift the focus from working productively to do what is best for the children to expressing rage at the breakdown of the marriage. That kind of shift does not work to anyone’s advantage.
  • For someone with no children but with spousal support and property issues, the divorce process can be extremely important because of the substantive protections that it provides. For instance, commencing the divorce action may be necessary to obtain discovery, special relief (e.g. exclusive possession, freezing of assets, maintenance of insurance policies), or alimony pendente lite (if there is an entitlement defense to spousal support). In a hostile situation where nothing can be accomplished by way of mutual cooperation, filing the divorce complaint, serving the discovery requests, and filing the necessary supplemental motions may be the best first steps and perhaps the only possible first steps. On the other hand, if the situation is relatively amicable, and there is a free-flowing exchange of documentation and information between the parties, then perhaps more can be accomplished by focusing on resolving all of the issues by way of a property settlement agreement. If settlement is possible, both parties stand to save substantially in terms of time and in terms of legal fees, as the divorce process in the court system will be limited to going through the procedural steps needed to obtain a divorce decree. After all, if negotiations ultimately break down for whatever reason, the divorce process will still be there.

In addition to the above, there are a multitude of other considerations that can affect how the divorce process begins:

  • Not being ready to divorce but wanting to resolve the financial issues while working on a possible reconciliation
  • Needing to delay the divorce filing or the divorce finalization to prevent a negative impact on a party’s receipt of benefits (e.g. derivative retirement benefits requiring a certain marriage length, health insurance)
  • Waiting to file until a child goes away to college

The takeaway is to strategize before taking any steps. Do not assume that what others have done will serve you well in your case, because it may have the opposite result for you.