SHOULD I FILE FIRST FOR DIVORCE OR WAIT?

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

Additionally, the date of filing also brings with it automatic orders which will affect your conduct as well as your spouse’s conduct.  Automatic orders prohibit the parties from transferring assets or canceling policies pending the outcome of the divorce. In sum, the status quo is to be maintained.

Besides from what is stated above, there is neither a benefit nor a penalty for filing first and it is relevant when it comes to determining marital property and equitable distribution. Therefore, the question you need to ask yourself is if you are worried that your spouse will cancel policies or transfer assets?  You also need to ask yourself if you or your spouse is about to make an investment or receive money and the filing of the divorce will enable you to keep the profit or prevent you from receiving 100% of these finances? Again, while legally there is no benefit or detriment to filing first, you should ask yourself the above financial questions, because it should help determine if you want to file first or wait.