In some Michigan divorces, one spouse serves the other with divorce papers, and the spouse who is served is blindsided. In most divorces, though, the couple knows their marriage is in deep trouble. If you know you and your spouse are headed for divorce, should you file for divorce first, or let them file?
The answer is both “It depends” and “It may not matter.” Who files for divorce first may set the tone for your divorce, but in many circumstances, it does not confer the benefits that the parties involved think it does. Let’s talk about when and why it is a good idea to file for divorce first in Michigan, and what you should do if your spouse files for divorce before you get a chance to. In general, the more contentious you expect your divorce to be, the more likely you might want to file first.
Reasons You Might Want to Be the First to File
When you file for divorce, your divorce complaint contains a list of allegations (statements about your marriage) and a prayer for relief (a request for the judge to do certain things for you.) Certain of the allegations are standard: you must tell the court when and where you got married, whether there are any minor children of the marriage, and that you believe that your differences are irreconcilable and there is not a reasonable likelihood that the marriage can be preserved.
You may also allege other things that your spouse has done. This is not the place to air every grievance, but if you are asking for certain types of help in your prayer for relief, you need to (briefly) give the judge a reason to grant you that relief. For instance, if you think your spouse has been concealing assets from you, you might allege that, and then ask the court for a restraining order preventing both of you from transferring or concealing any assets. (Because the court is usually reluctant to grant an order without hearing from both parties, this type of restraining order is very limited in duration.)
If you have children, you can also ask for a restraining order when filing the divorce that protects the status quo with regard to them: with whom they live, where they go to school, etc. This type of order would also be very limited in duration, but if it’s in place, the judge may not change it unless they see a good reason to.
While your spouse will have an opportunity to respond to your complaint, and may even file a counter-complaint making allegations against you, filing first may give you the opportunity to “set the tone” for the divorce, especially if you ask for restraining orders. These “ex parte” (addressing the interests of one party only) orders may ripen into temporary orders, which could ultimately become permanent.
Another reason to file for divorce first is that you may get to choose the jurisdiction for the divorce. If you and your spouse both live in the same county, the divorce case must be filed in that county. But say, one of you lives in Oakland County and one of you lives in Wayne, if you both lived in your respective counties for a minimum period of time, you can choose which you prefer. And if your spouse lives out of state, if you don’t file in Michigan, you run the risk of your spouse starting a divorce case in their state if you don’t file first.
Should I Worry if my Spouse Files for Divorce First?
You don’t necessarily need to worry if your spouse files for divorce first in Michigan, but you do need to act. If your spouse has filed, and has obtained ex parte orders regarding assets, custody, or both, you must respond within a certain period of time. Not answering the divorce complaint won’t stop the divorce from moving forward, and your spouse may even be able to complete the divorce without your participation—on their terms.
If you don’t answer the Michigan divorce complaint within the time prescribed, the allegations in the complaint are deemed to be admitted—so if your spouse said something about you or your marriage that wasn’t true, you won’t be able to fight it later if you didn’t answer in time.
Similarly, if you don’t object to an ex parte order within the very brief time allowed to do so after you are served, the order automatically becomes a temporary order, and will be even harder to change. It is very important to retain an attorney as soon as possible so that they can help you respond to the divorce papers in a way that preserves your rights.
If you’re considering filing for divorce, and especially if you’ve been served with divorce papers, first have a free initial phone consultation with an experienced Oakland County divorce attorney to learn more about what you can expect from the Michigan divorce process. Attorney Jim Hubbert has handled many Michigan divorces, and is well-versed in protecting his clients’ rights.
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