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SHOULD FILE FIRST FOR A DIVORCE?


The filing of a divorce triggers certain financial cut off dates that you should be aware of if you are contemplating a divorce from your spouse. When determining marital property, the court will consider two specific dates. The first date is the date of your marriage. The second date the court will consider is the day the action for divorce commenced. Any acquired property during these two dates, unless it falls under limited exceptions for separate property (inheritance, personal injury awards or gifts which are not comingled) will be considered marital property and subject to equitable distribution. Consequently, the day you file for divorce is important for purposes of establishing what will be determined as martial property.


Additionally, the date of filing also brings with it automatic orders and notices which will affect your conduct. Automatic orders prohibit the parties from transferring assets or canceling policies pending the outcome of the divorce. This is considered an order of the court and any violation brings the possibility of a contempt motion.


Therefore, the answer to your question is, it might matter who files first for the issue of deadlines. Once the decision to get divorced has been made, you need to ask yourself if you are worried that your spouse will cancel policies or transfer assets? While legally there is no strategic benefit or detriment to filing first, you need to consider the above deadlines relating to marital property as it might help determine if you do want to file for divorce or wait.

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