Filing for divorce is a major decision that should not be taken lightly. While you may be eager to get the process started and move on with your life, filing first is not always the best strategy. Here in Minnesota, where we have a no-fault divorce system, it often does not matter who files for divorce first. However, there can be some key drawbacks you’ll want to consider before rushing to submit your divorce petition.
This article will examine the potential disadvantages of filing for divorce first in Minnesota and help you determine if it’s the right move for you and your situation.
Overview of Divorce in Minnesota
Minnesota is a no-fault divorce state, meaning you do not have to prove fault or wrongdoing by your spouse in order to file for divorce. You simply need to state in the petition that there has been an “irretrievable breakdown” in the marriage.
To file for divorce in Minnesota, one spouse must have lived in the state for at least 180 days before starting the proceedings. The vast majority of divorces here are no-fault, uncontested divorces. This means that both spouses agree on all the terms, including property division, child custody, child support, and alimony. Contested divorces, in which the spouses do not agree on one or more issues, must go before a judge for resolution.
The typical process includes filing the initial divorce petition, attempting negotiation, participating in mediation if needed, and finalizing the divorce decree. The state has an online self-help center with divorce forms and information on the process. However, having a skilled Minnesota divorce attorney on your side can make a big difference in ensuring your rights are protected.
What Are the Potential Disadvantages of Filing First?
While it may seem advantageous to be the first one to file the divorce petition and “start the proceedings,” there are some potential downsides you need to keep in mind.
You Have to Pay the Filing Fee
To file for divorce in Minnesota, you must pay a filing fee. While that may not seem like much compared to the overall cost of a divorce, it’s still money out of your pocket. If you wait for your spouse to file first, they will have to pay that fee instead.
You Show Your Cards First
Filing first means you lay out all your divorce wishes first—before your spouse has indicated theirs. This gives them the advantage of crafting their response with your filing in mind. They may claim more assets, seek an unequal property division, or make an unreasonable child custody demand.
By waiting for your spouse to file first, you get the opportunity to respond and rebut the claims you disagree with. You also get to present your side second, which can be beneficial in getting your perspective heard if your spouse makes false or exaggerated accusations initially.
You May Appear Overly Aggressive
There is a risk that filing first will make you appear overly aggressive or greedy as if you are trying to get more than your fair share. This can hurt you if your case ends up in litigation. The courts look favorably on spouses who are willing to compromise. So, even if you feel fully justified in your divorce wishes, filing first may not send that message.
You Tip Your Hand on Sensitive Issues
Filing for divorce requires you to reveal sensitive details about finances, assets, debts, children, and other intimate matters. If you file first, you have to present this private information before your spouse does. This deprives you of the chance to first assess and respond to the specifics of their filing.
You Lose Negotiation Leverage
When your spouse is the first to file, you gain leverage to negotiate terms that are fair to you since they need your cooperation to finalize the divorce. If you file first, you lose that upper hand in settlement talks. Your spouse may dig in their heels, knowing you need their signature on the paperwork.
You May Have to Revise Your Filing
There is a chance you will have to amend your initial divorce filing if your spouse’s response brings new factors to light. This will require additional time, effort, and legal fees. It could have been avoided by letting your spouse file first and then responding.
Your Spouse Can Contest the Divorce
When you want an uncontested divorce but your spouse does not agree to the terms you laid out in your initial filing, they can contest the divorce. This can drag the proceedings out significantly, drive up costs, and take the decision out of your hands.
Your Spouse Could File First Anyway
If your spouse beats you to the punch and files for divorce first, your initial petition will be superseded, and much of the work wasted. The court recognizes whichever petition is filed first. All subsequent filings are treated as responses.
What Are the Potential Advantages of Filing First?
Filing first for divorce provides a few key advantages:
- You get to present your side first – By filing the initial divorce petition, you can lay out your side of the story and your requests upfront. This allows you to set the tone for the divorce early on.
- It prevents getting “served” first – Getting served with divorce papers can be very upsetting. Filing first means you get to initiate the process rather than having it come out of the blue.
- It gives you more preparation time – The spouse who files first typically has more time to get their affairs in order and prepare for the divorce proceedings.
- You can establish the legal proceedings in a convenient location – In most states, the person who files first gets to choose the venue. This allows filing in a court that is more favorable or convenient.
- It provides a sense of control – During an emotionally turbulent time, being the filer can provide a sense of agency and proactivity.
When You May Want to Wait on Filing
On the other hand, situations where you may want to delay filing the initial divorce petition include:
- You think your spouse may file first, letting them handle the petition process
- You need more preparation time to gather financial records and evidence
- You want to inform your spouse first and try negotiating terms civilly
- You hope marriage counseling or separation may lead to reconciliation
- Your spouse has complex financial assets that will require extensive disclosure
- You want to minimize initiating potentially contentious court proceedings
- Both spouses are unsure about definitively ending the marriage yet
The Divorce Filing Process Step-by-Step
If, after careful consideration, you decide filing first for divorce is best, here is an overview of what to expect in the process:
1. Find and Hire a Qualified Family Law Attorney
Don’t attempt filing pro se without experienced legal counsel. Locate and retain a divorce lawyer to advise you.
2. Work with Your Lawyer to Complete the Petition
Your attorney will help craft your divorce petition detailing requests for division of assets, spousal/child support, and custody arrangements.
3. File the Petition with the Court Clerk’s Office
Signing the petition in front of a notary before filing is usually required. File the petition with the court clerk along with payment of fees.
4. Your Spouse is Served the Paperwork
They will receive a summons giving them a set time frame to respond, typically 20-30 days. A private process server often handles formal service.
5. Your Spouse Files a Response
Their legal response will address your petition requests. Expect counterproposals. Negotiation aimed at settlement may begin.
6. You Meet Requirements for the State Waiting Period
Most states require a waiting period before the divorce decree. This ranges from 20 days to one year.
7. The Divorce Can Be Finalized
At the end of the waiting period, the judge can grant the divorce and issue final orders on arrangements for property, support, custody, etc.
While every divorce case is unique, understanding the general filing process provides a useful perspective. An experienced family law attorney can help with specifics.
Can both spouses file for divorce?
In Minnesota, either spouse can file a petition to start the divorce proceedings. The state allows for “no-fault” divorce, meaning the person filing does not have to prove wrongdoing by their spouse. All that must be stated is that there is an “irretrievable breakdown” of the marriage.
Typically, one spouse will be the first to file the initial divorce petition through the court. The other spouse will then receive formal notice of the filing. At that point, the other spouse has the option to file their own counter-petition for divorce as a response. However, it is not required or necessary for both spouses to submit divorce petitions. The court will move forward with the divorce based on the first petition filed, regardless of who files it. The key is that both spouses will have a chance to respond and address issues like property division, support, and child custody.
Let our Divorce Attorney Guide You With Your Divorce Process.
Divorce is difficult under the best of circumstances. Here at Martine Law, we strive to make the process as smooth, fair, and amicable as possible for our clients. Filing for divorce first is not always the optimal choice, depending on your goals and circumstances. As your legal advocates, we aim to help you achieve a negotiated settlement whenever appropriate.
While we will fight tirelessly on your behalf if litigation becomes needed, we believe pursuing an uncontested divorce through compromise and cooperation is often best for all parties involved, especially where children are concerned. Our team can provide the skilled guidance and support you need to move forward with your new life after divorce. Contact us today to schedule a free consultation.
