Does it matter who files for divorce first in New Jersey?

Posted by Mukund Khanna on July 20th, 2022

Yes, it matters. Whether you file for divorce first or your spouse does, it will likely depend on the specific circumstances of your case. If you are filing for divorce because your spouse cheated, then normally, you would want to be the one who files for divorce first, so that there aren’t any accusations of collusion between spouses.

On the other hand, if you are the party who cheated on your spouse, then it may be in your best interests to file for divorce last because you could still get the house (assuming the place is titled in both names). A court order forcing alimony payments from a cheating ex-spouse after a divorce is granted.

You do not have to be separated before you file for divorce, but if you are still living together after filing for divorce; your spouse could seek an injunction against the filing until the issue is resolved.

Pros of Filing for divorce first in New Jersey:

• It’s a more straightforward process that doesn’t require the waiting time needed to go through a divorce trial first.
• Filing for divorce first could result in an agreement between the parties on how to divide their property, debts, and other legal rights without going through a trial. This may help to reduce tension, time, money, and emotional strain for both parties.
• The filing of divorce papers will protect one party’s interest in sharing or preserving property by ensuring the other party doesn’t use it during separation.
• The filing of divorce papers can prevent further damage to marital property caused by alienation of affection claims or criminal activities committed against one spouse by another party outside of the marriage.
• The filing of divorce papers will also protect one party’s interest in being financially supported by the other spouse during separation and before a divorce can be finalized.

Cons of filing for divorce first in New Jersey:

• If you file for a no-fault divorce first, it means that you have to admit that there are at least “irreconcilable differences” between you and your spouse, which could be used against you in a later trial.
• Some things can’t be taken care of during divorce proceedings or agreements, such as child custody cases.
• The filing of divorce papers will often start the New Jersey Statute of Limitations clock on certain types of legal claims, such as alimony, equitable distribution of property, child custody, and child support.
• The filing of divorce papers could result in the court requiring spousal support or maintenance payments to be paid for a potentially long amount of time, which can have significant financial consequences for both parties.

Standard benefits:

You can avoid the waiting time that is required to go through a divorce trial first.

Emotional benefits:

It may be easier for you to move on with your life without contacting your former spouse.

You have to discuss and work out fewer things than there would be if you filed for divorce after living separately for at least 12 months, which can reduce or eliminate the stress associated with divorce.

You may come to some agreement as part of the divorce proceedings, which could save you money and time, and emotional distress.

Other benefits:

You can file for a no-fault divorce at any time, but if the parties have been separated for at least 12 months and agree that there are “irreconcilable differences” between the parties, it will speed up the process. Get in touch with a Family law attorney in New Jersey to know more.