Kristen M. Buzzelli, Contributing Author
The first step in legally dissolving your marriage happens when either you or your spouse file for divorce. This is a big decision and shouldn’t be made lightly; however, it may be out of your hands if your wife makes the move without giving you warning. While it is entirely possible to represent yourself throughout the entire divorce, including filing from the very start, having an experienced family law attorney to guide you through the process will greatly simplify things.
However, it is still beneficial to have a basic understanding of how filing for divorce works for both the position of petitioner (person filing) or respondent (person being served), regardless of your situation.
There are some states where filing first is a big advantage and others where it does not matter at all. In Kansas for example, you have the option of asking a judge for ex parte temporary orders if you file first. Ex parte temporary orders are orders that can be obtained by one party from the judge without the other party having notice or being present at the hearing. Ex parte orders can set up custody, child support, spousal support, award possession of the marital home, divide other assets and restrain the parties from contact. Filing first in a state that allows for ex parte orders can give you a huge advantage.
If you live in a state that does not allow for ex parte orders, the only advantage of filing your case first is the advantage of surprise. Since you know the divorce is going to happen, you have the ability to protect relevant documents and potentially leave the home if you choose.
Filing first also means that you will have to pay the filing fee required by the state. Filing fees vary from state to state, but filing in Kansas or Missouri costs somewhere between $150 and $200. Filing first also means that you will have to pay to serve process on the other party. This cost can run anywhere from a $5 process fee to a sheriff, to $50-100 for a private process server.
Another thing to consider when deciding whether or not to file first, is the possibility that the other party is going to leave. If there is a chance that she may hide from a process server, filing quickly and surprising her with service of a divorce petition will be cheaper than having to potentially hire a private investigator to find her. Most states also have a statute that specifies when a divorce is filed, neither party can remove the minor children from the jurisdiction of the state. You should always file first if your spouse has threatened to take your children away from you. Filing first should help prevent a kidnapping and makes it more likely that the police department will react to parental kidnapping.
If your spouse takes the children and leaves the state, this is parental kidnapping and is a felony in most states. In several states, if one spouse takes the children and will not reveal their location, it will also be considered parental kidnapping but at the misdemeanor level. If either felony or misdemeanor kidnapping occurs, you should contact the police immediately. Many states have statutes that prevent one parent from removing the children from the state once a divorce petition has been filed.
If your spouse is simply denying you parenting time with the children, you should file a request for temporary orders in the divorce case. Most judges will want to ensure that both parents have quality parenting time with the children. If the judge feels that you may present a danger to the children, the judge will still likely award you parenting time but it will be of short duration and will be supervised by a third party. Supervised visitation is likely occur when there has been domestic violence in the household, if you have been absent from the children’s lives from an extended period of time, if there is a substance abuse problem or if there are mental health issues involved. Though the threat of “You will never see your children again” is common during the divorce process, it very rarely occurs.
Editor’s Note: This is the first of a two-part series outlining the basics of filing for divorce.