Clients often ask me if it is important for them to file for divorce first. There are a few advantages which I will discuss, but generally speaking, since Michigan is a No Fault divorce state, it doesn’t matter who files first. Either party can file, and even if the other spouse doesn’t want a divorce, the divorce will proceed once a complaint is filed. There are a number of statutory requirements that must be included in the complaint that I will discuss in other posts, but suffice it to say, Michigan actually mandates that parties do not allege fault in the complaint. So, the person filing first gets the ball rolling but doesn’t necessarily gain a tactical advantage.
The person filing first is called the plaintiff. The other party is the defendant. Unlike in criminal matters, the defendant is not an accused wrong-doer. . . these terms are used merely because divorce is an adversarial proceeding. Nevertheless, a divorce case does not need to be a battle and in fact, it is usually in everyone’s bests interests if the parties can resolve the issues as amicably as possible.
In cases where there is abuse (which comes in many forms. . . again, a topic for another post) or financial manipulation, the person filing first can ask the court to enter ex parte orders that preserve assets, maintain the status quo and even provide personal protection. You are in the best position to decide if these risks exist in your situation and you should discuss the potential benefits of filing first with your divorce attorney.
Another potential advantage to filing first and being the plaintiff is that the plaintiff’s attorney typically prepares the proposed judgment of divorce. I always like being the divorce attorney in control of the judgment if at all possible. Nevertheless, even in cases where I’m representing the defendant, I have frequently taken over the drafting of the judgment.
So, if you’re unsure as to whether you want to file your divorce first, call me for a free consultation and I’ll be glad to discuss the potential advantages.
I have discussed this issue in previous blogs but the question has come up so much lately that I felt like I needed to bring it up again.