Tuesday, November 22, 2011

When is the Best Time to File for Divorce?

If you are thinking about filing for divorce, one of the obvious questions is about timing. There is no simple, universal answer as to when the best time is to file. Sometimes, couples may think about, and even talk about, divorce for years and then finally decide to take the plunge. Other times, a quick decision is necessary. Here are some considerations to help you decide, if you are approaching that step.

1. When You Need to File. There are several situations that may lead to the conclusion that you "need" to file now.
  • Safety: If there has been family violence or a serious threat of family violence, you should act. The threat doesn't have to be spelled out. Sometimes, it becomes obvious that a situation is about to turn violent. Or, you may hear something from someone else that contains a credible threat or signs of danger. You should always be careful to protect your own safety and the health and safety of your children. That may require you to file for divorce.
  • Protection of Assets: There may be threats or actual steps to hide or dispose of cash, investments or other assets. In some situations, one spouse will remove all or a significant amount of the cash to "protect" it. Sometimes, access to accounts is changed. If any of these actions have occurred, or have been threatened, you should act to get a court to protect your assets. It's hard to get money back, once it's been spent.
  • Preventing Runaways: Unfortunately, kids often become pawns in divorces. A parent may think that he/she will be able to get control or move a divorce to a distant county by running away with the kids. If you file before the runaway, most judges (at least here in Tarrant County) will not allow one parent to move away with the kids without the agreement of the other parent. If a parent has already moved away, you can usually get the kids back to Tarrant County if you file right away.
  • Access to the Kids: Sometimes, after separation, a parent will just refuse to let the other parent see or talk to the kids without a court order. The parent in control often views the kids as possessions and worries more about how to control the other parent than about the kids maintaining good relationships with both parents.

2. When You Want to File. This refers to the situation where one or both parties have carefully thought about whether to try to save the marriage and have reached the decision that it would be better to end it. Often this follows counseling for one or both parties. That counseling will often help the parties accept the decision to separate and divorce, and the counselor can help the parties plan their futures. Filing at this stage is usually a little easier, but sometimes the other parent hasn't progressed to the point of acceptance, so it can still be difficult.

3. Calendar Considerations. This may come up if there is not an emergency. If there are holidays approaching, many people prefer to wait until after the holidays to separate and file. That is especially true if there are children. You may also want to consider the kids' activities and schedules so that you don't separate just before a big test, a performance or an important game, for example. In addition, you should talk with an attorney to find out if there are any other dates or events that could come into play. For example, the courts are really clogged from mid-July to mid-August with change of custody cases. It is hard to get much court time during that period. Experienced attorneys know when the courts are traditionally busy and can help you plan ahead.

Probably the best approach is to consult with an attorney early when you start thinking about divorce. You will probably have a lot of questions you want to ask, but don't forget to discuss timing.

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