Many of our clients wonder who should file for divorce first and whether there is an advantage to be named the Plaintiff (the filer of the documents) or the Defendant (the spouse that would be served with the compliant). A critical issue with filing for divorce is the restraining order that may be put in place if requested by either party.
If you are the party filing the document, you control when the restraining order is put in place and when the assets are frozen. Accordingly, it is appropriate to be proactive in planning when you would like to file for divorce and not be subject to the surprise filing of the other party. This may happen if the parties are contemplating filing a dissolution and one party is not negotiating in earnest and rather is using that as an opportunity to have a surprise filing in order to obtain a restraining order first. In a divorce case, the restraining order is an order issued by the court that indicates the parties cannot liquidate assets without the court’s authority while the divorce is pending. Often times, someone who is proactively attempting to file for divorce may attempt to drain a bank account, file for divorce and restrict the other spouse from utilizing any other assets in their defense of the divorce case or for other purposes. Accordingly, if you are contemplating filing for divorce, it is important to obtain legal counsel to develop a strategy so that you can be proactive in your divorce case.