EP 198: When Should You File for Divorce?

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Thank you for listening! Find a transcript of this episode below.

When you think about divorce, it is indeed a process, and as part of that, I get to work with you through all stages of the process. Sometimes it’s months or years before you file, and you’re trying to figure out the key items. Other times during the divorce, you’re trying to figure out what path makes the most sense for you, and sometimes, it’s even after divorce is over and whether or not it makes sense to pursue a modification or trying to enforce a part of the agreement that’s not being taken care of promptly. In this episode, I want to give you some considerations for those of you who are still considering filing for divorce, and in particular, when you should file and whether you should file first. There are reasons that you might want to file first, but the end of the day, if you can control it, you should file for divorce when the time is right for you.

Now, sometimes that timing is enforced upon you by your spouse filing, but if you’re in a position where you can control when to file, you need to wait until it makes the most sense for you and your family. Sometimes that might mean, well, waiting for the kids to get out of the house and go off to college or go off to their next career. Or I’m thinking about taking this job or my spouse is thinking about taking this job in another state, or whatever the case may be. Or maybe we’re still in the trial separation phase, and we want to reconcile, and so maybe we shouldn’t file for divorce quite yet.

Whatever the case is, you need to, if you can, wait until things are right. Now, sometimes you are kind of forced to wait. Maybe you’re trying to figure out certain financial complications or other things as part of divorce. I mean, there’s a lot to think about when you’re filing for divorce. There’s 200 episodes of this podcast, which just deals with the financial issues and doesn’t even get into most of the custody issues in the legal process of divorce, oftentimes, as well, that’s involved. And so there’s just a lot to think about whatever the case may be. But in general, I would say my advice is this, is don’t rush into divorce if you can prevent it.

Oftentimes when I talk to you and you’re still in the early phases, you might be still trying to reconcile, and you might still be trying to do things to make things work for you. In that, case I’ll say, “Hey. You know what? Here’s what you need to be doing to prepare today just in case the worst case happens. But it’s my sincere hope that I never have to speak with you again, and you reconcile, and you’re able to work things out.” That’s my hope is that I don’t have to … If I didn’t have this job, I would be very happy. But you know, things are what they are, and so we have to confront them head on. I want to make sure that you’re protected.

That said, now there’s some reasons that you may consider filing first. I’m going to go through three reasons on why you might want to file for divorce and might want to do it sooner over later. Now, sooner doesn’t necessarily mean next week or next month or even next year, but when it looks like divorce is inevitable, there are some things and some reasons you may want to consider filing for because you can dictate a few key elements of the divorce process or maybe have some needs to dictate a few key elements of the divorce process.

I’ve been reading a lot of military books lately. I grew up in a military family, and I find military books fascinating. One of the things that’s come up in a lot of the books I’ve been reading lately, particularly on the more modern wars, Afghanistan, Iraq, and some of the other conflicts that we’re involved in across the world, is these soldiers repeat a phrase that is actually pretty important in the divorce process. But they keep repeating this phrase, tactical advantage, and there are tactical advantages to filing first when it comes to the divorce process. What are those? These are things that give you a leg up against your opponent and unfortunately, your spouse becomes your opponent in the divorce process. Sometimes it’s necessary to get the advantages you can have, particularly if you’re starting at a disadvantage.

Here are the three reasons to consider. One is you get to choose where you want to file. Two is if there’s immediate danger to you or your children. And three is to prevent the movement of assets or prevent further hiding of assets. I’m going to go through each of these issues.

Point number one is you get to choose where you want to file. Oftentimes, either one of you is moving out of the house or maybe moving across the city or the state or to a different state entirely, and that can provide or propose some potential complications when it comes to the divorce process. If you are in one state and your spouse is in another state, for example, I’m going to use the extreme version of this. Well, and you’re both residents of your respective states, well, whoever files for divorce, well, that’s likely where the divorce is going to be taking place.

So, if you live in … I’m just going to make up these examples. Let’s just say you live in Texas where I am, and your spouse is moving to Colorado. I have a situation right now where something like that is taking place. Your spouse lives in Colorado now. Well, if you file for divorce in Texas, then you get to have a Texas lawyer who’s near you, probably in your town. You get to pick the court and the county and everything’s better. But if your spouse files first and your spouse is in Colorado, well, many of the issues that have happened in this divorce are going to take place under Colorado law, and then you’re going to have to get yourself an attorney in Colorado who can practice in Colorado. You’re going to be going to court in Colorado potentially, if that’s what’s required. You know, you have a distance issue that adds some layers of complication to how this process may go for you.

So, if that’s a concern for you, or it might just be a different city, if someone moves a few hours away, you have to be prepared to make that few hour trek whenever you want to have an in-person meeting on a particular issue. So, there’s things to think about in that regard when it comes to divorce. If you have that issue, you may want to be the person who files first so you can dictate what jurisdiction you are in.

Now, second thing is if there’s immediate danger to you or your children. I’m looking for some good experts in this area to talk about some sort of abuse things because it’s something that comes up more often than I would like. But if you are in a position where you’re afraid your kids could be kidnapped or abducted by your spouse, or if you’re in a position where there’s a lot of abuse going on, be it physical or emotional or otherwise, then you should consider filing for divorce first, and also, putting, implementing at the same time, some legal protections to prevent a spouse from further communication with you, direct communication, or to make sure there’s supervised visits with the kids, or whatever sort of protection of custody there may be or that’s required for your children or you so that you are legally protected.

You know, there are some tragic situations out there where a spouse doesn’t protect themselves, and the worst case, either severe abuse can happen, or there’s cases where you can be threatened with your life. And one of the ways to help protect that, it’s not the only way, but one of the ways to take a step in the right direction is to file for divorce and for additional legal protections to prevent your spouse from communicating you or having certain contact with you in order to ensure that you’re not threatened down the line. And if there are continual threats, that you have a legal recourse to protect yourself in those circumstances.

Then the third thing is to stop the movement of assets. So, one of the things that can happen is when you’re getting divorced, they have these things … Oftentimes, you have to ask an attorney what your local version of it is, but it’s an automatic temporary restraining order, which actually, it doesn’t have to do with a physical things, actually tends to deal with monetary things. Basically what it says is that you and your spouse or that you … Yeah, you and your spouse, can’t make unusual financial decisions anymore now that the divorce has been filed.

What do I mean? Well, because a divorce has been filed, you can’t, all of a sudden, take a bunch of money out of a joint account and steal it, for all practical purposes, or your spouse can’t go get a new loan to try and hurt one’s credit or can’t open up new investment accounts or can’t move large sums of money around. When you file for divorce and you have these restraining orders in effect, then you have the potential to protect yourself if your spouse does do something suspicious and something fishy. And if they do it after the divorce is filed, that can really come back to haunt them and hurt them later. It gives you a layer of legal protection to say, “Hey. Your spouse is in violation of certain things, and therefore, you deserve to be compensated for those things.”

This really comes into play a lot when … I know I’m willing to bet almost all of you suspect … Most of the people who listen, or many people who listen, suspect to some form of a spouse hiding money from them. Oftentimes, that is indeed the case. Now It’s just the question of how much is being hidden from them. But when that is happening, one of the ways to provide some real consequences for that to continue happening or to prevent that from continuing to happen is by filing for divorce and having these orders in effect where it says if your spouse does something fishy, they get punished. But if you haven’t filed for divorce yet, a lot of things that you can do while still just a normal married couple, like take a bunch of money out of accounts or take loans out or whatever the case may be, might be perfectly legal and perfectly normal until a divorce has been filed.

Now, as I said, whether it is choosing where you want to file, be it the state or the county or the city, be it your kids are danger or you’re in danger or you’re trying to prevent the movement of assets, ultimately, timing can be very important for you and the divorce process. Sometimes these things are very time-sensitive and super urgent, and you need to pursue them right away. And then other times, you’re in a relatively amicable situation, and you’re just trying to do the best for the family and the kids, and you’re in a position when you can wait and kind of can figure out some things in advance. You can kind of wait on things and plan more carefully for some of the considerations that you have when you’re filing for divorce.

Ultimately though, you have to file when the time is right for you. There’s a lot of considerations, there’s a lot of things you might need to think about and work through, but do it when you’re ready. Don’t do it sooner than you’re ready. And as I say, if there’s a chance … The other thing I didn’t really get into, but if there’s a chance that you’re still can reconcile with your spouse and you think that there some things that you can do, well, maybe you should wait a little bit longer. But you have to weigh the pros and cons of waiting versus filing now to determine what’s best for your situation.

If it’s one of those things … One of the times I do a lot of coaching calls is for people who are still researching their options and trying to figure out, well, should I file? How should I file? What options do I have? You know, there’s very different options for pursuing the divorce process when you’re in an amicable situation than there are when you are in a highly contested and very adversarial situation. There’s a way to preserve family relationships even though you’re getting divorced, and there’s other times where you have to kind of go all out. But if no one’s filed yet, you kind of have some options in terms of talking through, or one of the things we can talk through is what makes the most sense for you and making sure that everything goes for the short and long-term in the way that you want them to.

Filing for divorce is a huge and complex decision. As you do your research and you’re thinking, I want you to write out, weight out these different concerns. Hopefully, when the time comes, or hopefully, never comes, you will be making the right decision for you, your family, and your ultimate situation.

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