Advantages of Filing for Divorce First
Should I be the one to file for divorce?
Is it bad if I don’t file first?
What are the advantages and disadvantages of being first to file?
Here at the Bloomfield Family Law Firm, we get these questions about filing first all the time. The good news is it’s not going to kill you if your spouse files for divorce first. You will still get a fair process (as much as any divorce proceeding is fair), and the final settlement agreement is not likely to be affected. However, there are certain advantages that come with being the one to make the first impression with the Court, specifically with regards to emergency or Ex Parte orders. This blog explores those advantages and explains the most common types of emergency orders typically filed with the Complaint for Divorce.
What is an Ex Parte Order?
Courts often enter certain orders on an ex parte basis without notice to the other party if you can assert specific, verified facts that irreparable injury, loss, or damage will result from the delay required to effect notice or that the notice itself will precipitate adverse action before an order can be issued. In other words, you must have an emergency reason why the Judge should grant the order immediately without first holding a hearing. Ex parte orders can be filed at any time there is an emergency situation.
An ex parte order is effective upon entry and enforceable upon service to the other party. This means you can enforce the order as soon as the other person receives proper notice of it. An ex parte order remains in effect until modified or replaced by the entry of a temporary or final order. If the other person objects to the ex parte order, then a hearing will be held to determine whether the ex parte order should stand.
Common examples of ex parte orders filed at the start of a divorce are Mutual Restraining Orders, Financial Status Quo Orders, Emergency Custody and Child Support Orders, and Personal Protection Orders. But beware – Judges do not take kindly to people filing emergency orders when there is no true emergency, especially when false allegations are made to get an unfair advantage in court. It is also important to remember that certain court documents are public and should not contain confidential information. Please remember to consult with your attorney before filing any ex parte orders.
What is a Mutual Restraining Order?
Mutual Restraining Orders, or MROs as they are often called, are typically requested to prevent foul play regarding the marital finances. MROs are mutual because they restrain both parties from transferring, assigning, removing, hiding, concealing, selling, damaging, secreting, converting, or otherwise disposing of the martial assets and the assets of the parties, except for the necessities of life. So, for example, you are not allowed to sell your stock and hide the profits from your spouse. But you are allowed to pay your regular bills, buy groceries, get your oil changed, buy the occasional take out, etc.
MROs are particularly useful when one spouse has strict control over the marital finances and/or has already demonstrated that they can’t be trusted. For example, if your husband is the sole breadwinner and never gave you access to the marital accounts, or if your wife suddenly removed $30,000 from the marital bank account without notice and never told you why, then it’s probably a good idea to file first and request an Ex Parte MRO.
If your spouse filed first and was granted an Ex Parte MRO, you do not necessarily have to object to it. Ask yourself the following questions: Are the provisions reasonable? Are the restrictions truly mutual? Do you want your spouse held to these same standards? If you answered yes to these questions, then it might be advantageous to leave the order in place. It can also be challenging to fight the order, absent a good reason, without making yourself look bad.
If your spouse filed first but was not granted an Ex Parte MRO, you can still get one if you assert specific, verified facts that irreparable harm will occur absent a court order. However, once the case has already begun, it is usually best practice to reach out to the other side to see if they will agree to an MRO, rather than entering it on an ex parte basis. Most divorce attorneys are willing to do this because it protects both parties by preserving the marital estate. Be sure to speak with your attorney about the appropriate strategy in your case.
What is a Financial Status Quo Order?
Financial Status Quo Orders are meant to ensure that all marital bills continue to be paid while the divorce is pending. By way of example, suppose both parties typically contribute to the mortgage, utilities, and private school payments for the children. But then one spouse moves out of the marital home and refuses to contribute to the marital bills any longer because now they have their own rent/utilities to worry about and, oh by the way, they never wanted to put the kids in private school in the first place. With a financial status quo order, the court is essentially telling your spouse that he or she cannot shirk his or her financial responsibilities simply because he or she chose to move out of the marital home.
If your spouse filed first and was granted an Ex Parte Status Quo Order, it may be worth objecting to if your financial situation has truly changed and you cannot afford to contribute as much as before. Again, the best practice is to reach out to the other side to see if you can work out an agreement. If an agreement cannot be reached, then you are obligated to follow the order until the court determines otherwise.
If your spouse filed first but was not granted an Ex Parte Status Quo Order, you can still get one by making specific allegations outlining how the bills are paid and why an order is essential so the marital expenses of the family will not be interrupted.
Ex Parte Orders Involving Children
Unlike MROs and Status Quo Orders, which are fairly commonplace and typically granted with ease, emergency orders for custody, parenting time, and child support are far more serious because they potentially limit the other person’s rights as a parent. Compelling circumstances should be presented to the Judge explaining why an emergency order is needed.
Ex Parte Custody and Parenting Time Orders may be appropriate in situations involving substance abuse, mental health concerns, or domestic violence. Ex Parte Child Support Orders may be appropriate when the parties are already separated but the custodial parent is struggling financially.
If your spouse filed first and was granted an Ex Parte Custody or Parenting Time Order, it is really important to object to it in a timely manner because you need to immediately combat the false narrative that somehow you are a bad parent. The unfortunate reality is that some people are willing to make false allegations against their spouse simply to get the upper hand in custody disputes. Why does this work? Because they know you will do anything to be with your children. For this reason, it is crucial to get an experienced attorney on your side quickly to set the story straight and level the playing field.
If your spouse filed first but was not granted an Ex Parte Custody or Parenting Time Order, the Judge either needed more information or caught on to your spouse’s game. Either way, the attempt in itself is typically a red flag that you are in for a nasty custody battle and that you should get an attorney quickly.
Personal Protection Orders
Personal Protection Orders, or PPOs, are court orders intended to protect you from someone who is threatening, hurting, harassing, or stalking you. Similar to ex parte orders for custody and parenting time, PPOs should never be requested merely as a case strategy. PPOs are only appropriate when a party is genuinely fearful of their spouse due to past violence, threats of violence, harassment, etc.
If you are in need of a PPO, the best thing you can do is discuss the situation with your attorney and create a safety plan for when you file the Complaint for Divorce and PPO request.
If you have a PPO against you, the best thing you can do is follow the restrictive order until you and your attorney have the opportunity to set the record straight. This means no contacting the other person or going to your shared residence – even if the order is unfair. Why? Because the worst thing you can do is give your spouse “evidence” to use against you in court.
Hire the Bloomfield Family Law Firm
Many family law firms shy away from divorce cases that intersect with criminal or CPS allegations, like those involving Personal Protection Orders or Child Protective Services. The attorneys at the Bloomfield Family Law Firm, on the other hand, are uniquely qualified to handle such cases due to our team’s extensive background in criminal defense, CPS defense, and defending against false allegations. Choose the team whose lawyers are ready for battle.
Call the Bloomfield Family Law Firm today to discuss your family law needs with one of our experienced attorneys.
