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Should You File For Divorce Before Your Spouse Does In Michigan?

by | Dec 2, 2021 | Family Law |

 

A divorce is, for all intents and purposes, a lawsuit.  One spouse pays a filing fee, submits a summons and complaint, acquires the designation as the “plaintiff”, and then causes the court paperwork to be served on the other spouse.  That other spouse acquires the designation as “defendant” as he or she is being “sued” by the plaintiff, that the legal claim must be answered.  Failure to respond to the divorce can lead to a default judgment against the non-filing spouse.  In a classic lawsuit, the plaintiff is the one seeking legal relief and the defendant is the one trying to avoid liability for a money judgment or specific performance court order.  Is there an advantage to filing for divorce first in Michigan?

From a legal standpoint, it doesn’t matter if you are the plaintiff or the defendant in a divorce action as far as getting an edge in the outcome.  Michigan is an “equitable distribution” state where divorce courts may distribute marital assets of spouses in a manner that they believe to be fair and equitable.  MCL 552.401.  Regarding child custody and parenting time, the judge must make decisions based on the best interests of the child.  These decisions won’t be based on who went to the courthouse first to get a divorce.

That being said, there are some benefits to filing for divorce first:

  • YOUR PICK OF THE COURT: A divorce can only be granted in a county circuit court in Michigan if either spouse resided in the state for 180 days immediately before filing and in said county for 10 days immediately before filing. MCL 552.9.  If you and your spouse live in different counties (or even different states), then the person who files first will determine where the divorce will take place.  This is a big deal if one spouse’s resident state has more favorable laws regarding property division or spousal support than the other state.  If the other spouse’s move to a different state is recent, you may want to contact an attorney and determine if Michigan’s divorce laws are more favorable to you and take advantage before the other spouse satisfies the residency laws for divorce in that other state.
  • YOU SET THE TONE: Another advantage of filing for divorce first is that you get to frame the issues in the case and the other spouse will have to react to it. For example, the plaintiff may file and request temporary orders for child custody, parenting time, child support or even spousal support.  It may even be possible to acquire ex parte orders regarding injunctions against hiding or disposing marital assets, obtaining exclusive use of the marital home, or even restraining orders against domestic violence.  The other spouse may be enjoined from hiding assets or destroying information immediately.
  • ADVANCE PREPARATION: Theoretically, if you file for divorce first, you can take all the time you need to prepare and get your information together. When the defendant receives divorce papers, he or she may be taken by surprise.  He or she will have 21 days to hire an attorney and file an answer (28 days if served by mail or out of state) or else risk a default.  Planning ahead can give you an edge and place you on the offense while the other spouse is reeling and forced to react to your moves.

However, there are some drawbacks to be the first to file.  First, it will cost more money.  The plaintiff is the one responsible for the filing fees (the defendant does not pay a fee to file an answer), and the attorney may charge more legal fees to prepare and file all of the starting paperwork.  Second, the plaintiff is revealing his or her strategy very early in the process, so the defendant will be on notice and can start planning a response well ahead of trial.  Finally, the spouse who files first may be perceived by the other spouse as “aggressive”, especially if the divorce will be a surprise to the other spouse, so it will create a more tenuous negotiating position.

Every marriage and every divorce is unique, so before you conclude whether you have an advantage in filing for divorce first, you should seek the advice of legal counsel ahead of time.  A skilled family law lawyer in your corner can properly advocate your position and give you the best chance for an optimal outcome.  If you or a loved one has questions about divorce in Michigan or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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