By Hope Tuber
The filing of a divorce triggers certain things that you must be aware of when deciding whether you should file for divorce first or let your spouse file. When determining marital property, the court will consider two specific dates. The first date is the date of marriage. The second date the court will consider is the day the action for divorce was filed. Any acquired property during these two dates, unless it falls under limited exceptions for separate property (inheritance, personal injury awards or gifts which are not comingled) will be considered marital for purposes of equitable distribution. Thus, the day you file is important for the purposes of establishing what will be determined as martial property.
Additionally, the date of filing also brings with it automatic orders and notices which will affect your action. Automatic orders prohibit the parties from transferring assets or canceling policies pending the outcome of the divorce.
Therefore, the answer to your question is, it might matter who files first. Once the decision to get divorced has been made, you need to ask yourself if you are worried that your spouse will cancel policies or transfer assets? Are you about to make an investment purchase that the filing for divorce will prevent you from a distribution of any profit? Or do you just want to get through this time in your life? When determining if it matters who files first in your divorce action, these questions will help guide you to your answer.