Why File First?
Considering the most optimal strategic moves is essential in any New York divorce. Once you have carefully selected the right divorce lawyer, you must begin to consider your next step. Just as your decision to hire a lawyer should not be done on a whim, your steps leading up to possible litigation should be carefully calculated.
I typically urge clients to initiate the Court process by filing first. In the long run, my clients almost always inform me that they are most satisfied when they filed first. I believe this feeling is true for a number of reasons.
Filing first establishes a clear point in time that your marriage is broken, thereby separating your lives personally and, often most importantly, economically. In 2009, the New York legislature enacted divorce legislation known colloquially as the Automatic Orders, which prevent either spouse from secreting assets or spending money outside the ordinary course of business. The Automatic Orders are only in effect and providing you with economic assurances when a divorce case has been commenced. The earlier you file, the more protection you provide yourself and the less likely your spouse is from hiding or transferring away assets or accumulating marital debt.
Second, when you file first in a New York divorce case, you are known as the "Plaintiff," while your spouse is the "Defendant." Your status as the Plaintiff provides certain advantages and puts you in the proverbial driver's seat. For instance, if the need so arises where your circumstances change, you may dismiss the divorce action because you filed first. If your case goes to trial, you present your evidence and witnesses before your spouse. It can be expected that a Judge may begin to formulate opinions about your case as you present your side. Your attorney will also be able to rebut your spouse's case after his/her lawyer has presented evidence and witnesses. By filing first, the ball is in your court.
Finally, filing first makes you pro-active rather than reactive. You have time to gather your evidence and prepare yourself mentally for what can be for many a very difficult time.
Navigating a New York divorce requires skill, thought, and strategy. Every aspect of your case should be considered carefully to optimize the best results.