Divorce Wisdom: When to File for Divorce

My name is Jessica Woll and I have been practicing divorce and family law for close to two decades. The job has taught me a great deal about human beings going through what is often one of the worst experiences in their lives. In my Blog I will share my client’s stories, while maintaining their right to privacy. I will offer advice, tips and insights based upon these stories. I hope that you find the information beneficial.

In this months blog, I will briefly discuss the issue of whether you should file your divorce action first.

Most people who call me about filing for divorce ask me if they need to file for divorce before their spouse files. Since every person’s situation is different, the answer depends upon your specific facts and circumstances.

I generally tell a person to file for divorce first in the following situations:

WHEN TO FILE:

• Your spouse has dissipated joint marital assets. If your spouse has taken marital funds without your knowledge and/or consent, you can ask for a mutual property restraining order when you file for divorce. The order does not stop you and your spouse from conducting business as usual with regard to the payment of the household bills. The order does however prohibit either party from taking extraordinary measures when it comes to spending. In order to obtain a restraining order, you have to file an action with the court first.

• Your spouse has cut you and/or the children off financially. Being denied access to marital funds is a common form of economic abuse in which the wage earning spouse maintains control over the non-wage earner. In this instance, once you file for divorce you can seek a court order that provides you with fair access to marital funds.

• Your spouse has threatened to repeatedly leave you and file for divorce but fails to take action. In this scenario, I usually find that the other person does not really want a divorce but that they are tired of the threat of divorce hanging over their head. The repeated threat of divorce is a form of emotional abuse. At some point you may want to take some control over the situation and file yourself.

• Your spouse is physically abusive. Physical violence is never okay. No person should continue to remain in an abusive situation where their safety is compromised. There is help available. Check out my website for resources.

• Your spouse suffers from an addiction or mental illness and fails to get help despite your repeated attempts to help him or her. At some point you need to protect yourself and your children. Divorce may pose the only answer under the circumstances.

• Your spouse threatens to take the minor children away from you.

• I generally tell a person not to file in the following situations:

WHEN NOT TO FILE:

• There are no pressing issues of emotional, physical or financial abuse and you are simply on the fence about whether to go forward with a divorce. Since divorce is a big step, I believe that you should explore your options before taking such drastic action. In this instance, you may want to try counseling first to see if the marriage can be salvaged.

• Your spouse has agreed to seek help for addiction or other serious problems that have caused the breakdown in the marriage. If your marriage has broken down due to addiction or abuse of any kind, you need to set some boundaries. If you are inclined to give your spouse a chance to make amends, make sure you set rules that work for you in the situation. Do not waiver from the rules you set. If improvement does not occur, file for divorce.

• A major life event is occurring in your family such as a child’s graduation, a wedding, or the birth of a grandchild. People often call me to seek advice about divorce before they are ready to file due to an upcoming family event. While it may be important to let others close to you have their special day, don’t use this as an excuse to put off the inevitable to start the next chapter in your life. If you are hanging on to a marriage strictly to make it through your child’s wedding, get through the wedding and then file. Do not look to the next family event to hold on longer if the marriage is truly over.

• Set a timeline. If you feel you cannot control your spouse’s actions but you feel paralyzed to move forward with a divorce, remember that while you cannot control your spouse, you have control over what is acceptable to you. You can take control by setting some goals for the marriage. If the goals that are important to you are not met, set a time that makes sense to you to call it quits if the situation does not improve. Remember, life is hard enough and a bad marriage does not have to be part of the equation forever.

A NOTE ABOUT FILING:

If you live in a county in which the court pleadings are online, be aware of the fact that your spouse may find out about the divorce mere days after the filing. Since the filing is a matter of public record, there are attorneys who will obtain your spouse’s name and address in order to allegedly send your spouse information about the divorce process. In reality this is a disgusting way that some attorneys attempt to attract clients. Many attorneys, including myself, find this practice unethical. This practice is currently under investigation. Therefore, if you decide to file for a divorce, please ask your attorney if you live in a county where this behavior is allowed. If you live someplace where your spouse may find out by this method, make sure you arrange to tell your spouse about the divorce before they can learn about it from a stranger in the mail who happens to practice law.

Best regards, Jessica Woll