When is the Best Time to File Suit in Domestic Cases?
Ask most family law attorneys when is the best time to file suit for divorce and the overwhelming response will be to file immediately.
A lawyer first must determine if there are grounds for either a limited or an absolute divorce. For a limited divorce, one ground could be that the parties are separated. For an absolute divorce, grounds include being separated for one year, adultery, desertion and constructive desertion, vicious conduct, and cruelty.
The next determining factor is the needs of the client. Often if suit is filed immediately, potential benefits such as alimony, child custody and support, and attorney’s fees may be ordered by the court from the date the lawsuit is filed. Where there are minor children involved, meaning children under the age of 18, and no order of custody exists, either parent may “snatch” the child from the other parent.
When married parties have not been able to agree to a separation agreement or property settlement agreement, one party has to decide what grounds he/she may have and then take sufficient acts to achieve the grounds for a divorce. One of those acts could be to move out of the marital residence. Therefore, when the ground(s) exist as described above, suit can be filed.
Another approach when parties cannot agree to work out a settlement for their divorce is that, by filing suit, the opposing party may take the party filing suit more seriously. Simply stated, “putting your money where your mouth is”. This causes the opposing party, the defendant, to have an attorney defend the lawsuit as well as to bring a suit against the party who filed first. In a divorce case where the attorneys are being paid by the hour, the clients learn very quickly how expensive it is in attorneys’ fees, court costs, and expenses for depositions, stenographers, transcripts and other costs. As a client becomes educated in how expensive the process is, the client will often be motivated to make better efforts in settling their divorce.
Another force at play is the Court’s issuance of a Scheduling Order which sets forth deadlines with which each party must comply. Examples of those deadlines are designation of experts, discovery deadline, settlement conferences, and the trial date. Again, in order to meet those deadlines, each party must spend considerable amounts of money.
Good preparation for trial often leads to success at trial and as the opposing party perceives your efforts in that regard, he/she may then have a desire to settle because of the fear you may win the case.
Yet another reason for filing for divorce immediately is that obtaining a divorce may provide closure for the party who filed first so that person may move on with his/her life. If your new friend perceives that initially you expressed intent to file suit and you have not, your new friend may move one because he/she does not want to wait any longer.
Conversely, there are many reasons for not filing suit immediately. One is to allow your attorney time to gather adequate knowledge of your needs; organize a good strategy; and be sure that you understand all of your options as well as the costs of filing suit, including attorney’s fees, the process of the courts, and unanticipated delays. Getting your “ducks in a row” and having what is needed for trial may take time and may require you and your attorney to gather what you anticipate may be needed ahead of time.
Fred Antenberg has practiced family law in Howard County, Maryland, and in surrounding counties of Central Maryland for over 30 years. Call Fred today at 410-730-4404 for a Free Initial Consultation.