Does It Matter Which Spouse Files for Divorce?

Once you and your spouse mutually decide to divorce, you may feel pressured to race to file the paperwork first. That is, you may have the preconceived notion that serving divorce papers, instead of being the one served, will put you at a powerful advantage in your pending case proceedings. Well, the New Jersey family court may not necessarily handle divorce in this fashion. Please follow along to find out whether it truly matters whether you or your spouse gets around to filing for divorce first and how a proficient Bergen County divorce attorney at McNerney & McAuliffe can help you enter this important process with your best foot forward, so to speak.

Does it matter which spouse files for divorce in New Jersey?

Speaking purely legally, the New Jersey family court should not and will not favor the spouse who files for divorce first. This is because the state’s family laws make sure that the plaintiff (i.e., the filing spouse) and the defendant (i.e., the responding spouse) have equal rights when petitioning for the divorce-related matters at hand. This detail does not affect the overall outcome of the case, specifically with spousal support, child support, child custody, and property division.

For example, there is the equitable distribution statute. This law holds that marital property must be divided fairly and justly between the two spouses. Secondly, New Jersey child custody standards go off the belief that each parent has the same right to remain involved in a child’s life, so long as they can effectively prove their parental fitness.

However, the spouse who files for divorce first may be able to obtain smaller, minor advantages throughout the divorce process. This includes the ability to file in the county where they reside, which can be a considerable geographic advantage. Additionally, the spouse who files first may be able to present their evidence at trial first, including being able to call witnesses to the stand first and controlling the order in which they testify to dictate the flow of the trial. Lastly, the filing spouse can better anticipate the timeline of the proceedings, leaving them more adequately prepared to gather evidence and build an overall strategy.

How will I know if my spouse filed for divorce before I did?

After you have the discussion with your spouse about parting ways, you may be left paranoid that they could file any day now. Well, it is best to prepare yourself for what will happen when they do. Essentially, you will be “served,” which means receiving a Complaint for Divorce and Summons in person by a process server or via official mail.

If you decide to file for divorce before your spouse, the first thing you must do is submit a Complaint for Divorce with the New Jersey Superior Court in the county where you reside. This Complaint will contain important information, like names, addresses, and information about your marriage. Once filed with the court, you must then have your spouse served by a neutral third-party. They will be served with a copy of the Summons, Complaint, and a Notice of Initial Hearing.

This is to say that your spouse telling you that they filed for divorce through a text message or verbally does not make it true yet. So once you are formally served, you generally have 35 days to “answer” by agreeing or disagreeing with a counterclaim. Your attorney can help make your answer legally recognizable.

Of note, a failure to respond may be the thing that puts you at a disadvantage in the upcoming court proceedings. Specifically, it may lead to a default, which means the New Jersey family court may choose to proceed without your input. In other words, your spouse’s proposed divorce-related terms may be the only ones considered for approval.

There is no shame in asking for help, especially when you are dealing with something as serious as a legal matter that could affect your physical, emotional, and financial well-being. So please retain legal assistance from a talented Bergen County family law attorney from McNerney & McAuliffe. We will happily lend a hand and help you through this first step.