Divorce isn’t always something that blindsides people. Sometimes a couple mutually decides that the next step is divorce; sometimes a couple will have conversations about the need to divorce. The next question for these couples seems to be whether it matters who files first.
In Massachusetts there is no clear advantage for filing first. Some attorneys may argue that by filing first you can “set the agenda” by picking a date for the temporary orders. While this certainly is true sometimes, the reality is that the temporary order date secured by the party filing first is usually subject to the availability of the opposing attorney. It is routine practice for attorneys to assent to moving court dates for conflicting calendars. This of course means that the minor advantage is now moot. Also, there are certainly strategies and motions that can be filed to make sure the agenda isn’t being set by one side.
Additionally, some attorneys think that by filing first they can ram through a lot of nonsense motions that are intended to throw the other side off their game plan. If your attorney is suggesting filing a series of motions that you don’t understand the need for, BE AWARE. (It is important to find the right divorce attorney for you.) Attorneys usually bill by the hour and some like to find ways to run up the bill. Filing nonsense motions also has the added consequence of ratcheting up the divorce heat. Too often I have seen a client come to me saying that the two sides are fairly amicable only to then be thrown on the defense unnecessarily by bogus motions. The only winner in such a scenario is the attorneys because they are getting the billable hours. Don’t get me wrong, sometimes a series of motions is entirely appropriate but if you have an attorney that has a laundry list of “standard motions” you should take caution.
Bottom line: if you get served before you have the chance to file, don’t sweat it. The game isn’t rigged for the fastest filer. More often than not a divorce is a marathon awarding those with endurance and the ability to pace themselves.
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