Should I file for divorce?

Posted on Jul 20, 2018 by Katie Carter

Should I file for divorce?

I get it. Divorce is frustrating. And sometimes, things just aren’t happening as quickly as you’d like them to. What’s the hold up? Why is his attorney taking so long? Is he even ever going to respond, or is he just jerking you around? Do you stand a chance of getting what you deserve without going in front of the judge?

There are so many questions swirling around in any woman’s brain as she contemplates the divorce process and the steps she should be taking. If you’re wondering about the path you’re on and whether you wouldn’t be better taking a different route, you’re not alone.

If you met with a divorce attorney already, they probably already gave you the low down on divorce. Basically, you have two options: (1) you negotiate a separation agreement, and agree on how to divide the assets and liabilities between the two of you, or (2) you go to court, and let the judge decide.
There are plenty of reasons to decide to file for divorce and move forward with the litigated process, but there are also lots of reasons to attempt to negotiate first. A litigated divorce (one where you file in court and prepare for a trial in front of a judge) is going to take longer, cost more money, and give you less control over the outcome overall. (Remember? It’s the judge making the decisions here!)

When possible, I generally find (please note I said generally, as in, this is not necessarily the case in every case ever in the history of the world) that people are happier with the results in cases where they negotiate themselves. There’s more control over which portion of the assets they receive, and certainly more room to be flexible when it comes to things like custody arrangements. That isn’t always the case, though, and there can be plenty of reasons why you might choose to just go ahead and file for divorce.

Why would I choose to file for divorce?

1. Your husband isn’t responding to your attempts at negotiating a separation agreement.

If you’ve already prepared a separation agreement and you’ve received no response from him, it may be time to file.

Without filing for divorce, we don’t really have the weight of the court behind us, and we can’t insist on moving forward without his participation. We can’t negotiate against ourselves, after all! If he won’t respond, or refuses to participate in negotiations, or negotiations have stalled past a point which you’re comfortable negotiating….well, there’s not much alternative. You have to file.

2. Your husband has cut you off from financial support.

If he has cut you off from support, you don’t have time to dilly dally while you get an agreement in place. It’s time to move forward – now – before you can’t afford to cover your rent or mortgage and keep the lights on and food in the fridge.
When you file for divorce, you can schedule a pendente lite hearing. Pendente lite is Latin for “while the litigation is pending” and it’s the first time in court, where you have the opportunity to ask for things like temporary child and spousal support. If you have no other options, it’s a great way to get support established, at least on a temporary basis.

Later on, you’ll negotiate (or a judge will determine) permanent support, but in a divorce you have to take things one step at a time. Step one: keep the wolves from the door. Filing for divorce is a good way to do that, and at least make sure that you’ll be okay financially until a final order or agreement is reached.

3. You’re not really sure what assets and liabilities there even are to divide in the divorce.

That happens. If you’re not sure what’s there to divide, you’re not really in a position to negotiate. When you file for divorce, you have the weight of the court behind you, and you can use it to help you accomplish things. Like the pendente lite hearing I mentioned before, when you file for divorce you can also do something called discovery.

Discovery is the process we use to figure out what’s there to divide. We can use all sorts of different methods – interrogatories, requests for production of documents, requests for admissions, subpoenas duces tecum, and so on – but the moral of the story is the same. When we request these, the other side HAS to respond. We can even ask for records from companies, like banks or cell phone companies or hospitals or daycare providers, that are relevant to our case, too. Every case is different, so what’s relevant in your case might not be the same as someone else’s, but there are tools there that we can use to make sure we have the information we need.

Is filing for divorce ideal? Probably not, in most cases. Generally speaking, I want to get the best result possible with as little time and money as possible involved. I’d prefer not to have to go the whole contested route if I don’t have to, mostly because then I feel like my clients have less control over their ultimate outcomes. That doesn’t feel the best; I prefer for them to be the authors of their own agreements so that they feel like what they’ve agreed to really reflects their situation and the best interests of their children. In court…well, generally, it doesn’t feel that way.

Court has its place though, and you shouldn’t be afraid to use it if you aren’t getting anywhere in negotiations, he has cut you off from support, or you aren’t clear on what the assets and liabilities are in your case.

For more information, or to schedule a one on one consultation to come up with a custom tailored plan of action in YOUR case, give our office a call at 757-425-5200.