HOW IMPORTANT IS IT TO BE FIRST TO FILE FOR A DIVORCE?

The first party to file is designated as the Petitioner and the second, the Respondent.  These labels will remain throughout the action, including any post-judgment filings regardless of the filing party.

There is really no legal significance to being the first to file, other than at the time of trial (should your matter have reached trial) the Petitioner will present his/her evidence first.

Filing first is basically an emotional or psychological event or necessity, often made necessary by the other party’s belief that “nothing is going to happen”.  By filing, it sets the record straight that this is a serious matter deserving attention to resolve the issues which have arisen causing an “irremeadiable breakdown” of the marital relationship.  This is known as “irreconcilable differences”.

In California, a no fault state, you are not required to state a reason for your divorce filing. The Family Code provides that the allegation of “irreconcilable differences” is sufficient.

Often one party has come to the conclusion that the marriage is not successful and no longer a workable relationship.  As unbelievable as it may seem, the other party is often “clueless” that there was even a problem, or so they claim. That contrast in and of itself would suggest that a problem existed.  In such a situation, filing first is almost a necessity so that the “reality” of the situation is made clear.

Included on the Petitioner, the Petitioner is required to allege a date of separation.  Due to economic reasons, an actual physical separation of the parties, one party removing him/herself from the residence, is not always possible. Such a situation is now common for economic and other reasons, and a physical separation is not legally required.  The date of separation is when one party no longer desires to remain in the relationship as husband/wife and communicates that intention to the other party.  The date of separation can be a very important issue later in the proceedings as it can determine various property rights and entitlements, so it should be carefully considered and discussed with your counsel prior to filing, if there are significant issues in this area.

Unfortunately, it is sometimes very important, even critical, to be the first to file and get the matter before the Court as soon as possible: property is “disappearing, bank accounts are being closed, credit cards are being cancelled, insurances are being cancelled or modified, drug or alcohol abuse has become intolerable, or problems with domestic violence.

Some of these issues require a filing and seeking of immediate court assistance such as a restraining or other emergency order.  These are obtained on an Ex Parte request or a filing under the Domestic Violence Prevention Act. (Those specific issues will be addressed in a future article).  By simply filing your Petitioner, Automatic Temporary Restraining Orders (ATROs) go into effect immediately and are in force on the non-filing party upon service. These orders are contained on page two of the Summons.

In summary, each case has its own set of facts and problems.  It is critical for you to know where you stand and be aware of the remedies available to you.

Feel free to contact the Law Office of Robert C. Bergen for an in person or phone consultation to discuss your particular situation.  We’re here to help.

http://www.rbergenlaw.com

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