should i file divorce first

When contemplating divorce and preparing to file papers, many New Hampshire residents think there is a strategic advantage to filing their “divorce papers” before their husband or wife.  Although in a few situations, there is a good reason to file first, in most divorces, there is no need to “race” your spouse to the courthouse.  If your spouse is the one to file the Petition for Divorce, you have an opportunity to file an “Answer” to the Petition as well as a “Cross-Petition for Divorce” – essentially your own Petition for Divorce.  Also, both of you will have the chance to present your positions to the court.  Some spouses believe that there is a “psychological” or “emotional” advantage to being the spouse who files for divorce first.  Some contend that it puts you “in control” and “on the offensive” – in other words, prepared to “do battle” for the kids, the house, and marital property.  The simple reality is, however, that in most divorces, your case is not going to be any “better” and you’re not going to have any “better” chance at getting the custody or property you want simply by filing for divorce first.  However, in the following cases, it is important to be the first to file for divorce:

Advantage to Filing for Divorce before Your Spouse – #1:

In certain situations, a husband and wife may be able to file for divorce in more than one state – for example, each spouse may live in a different state and can file for divorce in his or her jurisdiction.  The divorce laws of one state may be more favorable to you than another – for example, the amount of child support you receive may be greater in one state in comparison to the other or the laws governing property division may be more beneficial to you in one state as opposed to the other.  If you find yourself in this situation, you should retain an experienced and trusted divorce lawyer in your jurisdiction to get your divorce filed as soon as possible.

Advantage to Filing for Divorce before Your Spouse – #2:

If you are concerned that once your husband or wife finds out that you plan to file for divorce, he or she will try to transfer and hide money and property – for example, withdrawing money from joint accounts or liquidating marital assets like 401(k)’s and IRA’s – it is critical to immediately file for divorce to preserve the marital assets.  In New Hampshire, as soon as a Petition for Divorce is filed with the Circuit Court – Family Division, an “automatic freeze” on all marital property goes into effect – whether it is financial accounts, investments, retirement assets, the home, and other real estate – so that neither spouse can transfer, liquidate, or hide property.

Advantage to Filing for Divorce before Your Spouse – #3:

If you are worried that once your spouse gets wind that you’ll be filing for divorce, he or she will begin running up big debts – for example credit card debt – it’s crucial to get the divorce filed as soon as possible.  Typically, debts incurred by either a husband or wife during the marriage are the responsibility of both spouses – but if your spouse runs up debt after the divorce has been filed, the court may be less willing to hold you responsible for it.

For immediate expert feedback (and a confidential perspective about your situation), please contact Attorney Grabler directly at (603) 669-2933. The call is free. She will help assess the specifics of your case. She will recommend the best course of action. Prefer email? Write to her: here.


This FAQ brought to you by Attorney Edrea M. Grabler of Family Law New Hampshire.
Manchester, NH divorce lawyer Edrea M. Grabler helps New Hampshire families in divorce, custody and property cases. Whether you’re getting divorced in Manchester, Nashua, Concord or in any city in the State of New Hampshire, Attorney Edrea M. Grabler is a lawyer who helps divorce clients get the custody, property and way of life they deserve. Are you considering divorce? Do you need changes or “modifications” to your divorce? Do you have a specific question about divorce — perhaps alimony, custody or property? Whether you’re just beginning to think about getting a divorce or you need to hire a divorce lawyer immediately, pick up the phone and call Edrea M. Grabler at Family Law New Hampshire for a free consultation. Attorney Edrea M. Grabler has over 20 years experience in helping fathers, mothers and families obtain their best possible custody, property and financial outcomes in New Hampshire divorce cases.