Traditionally, the only way to get a divorce was to prove that your spouse had done something that was officially recognized as a justification for divorce. In other words, your spouse had to be at fault in breaking up the marriage. The most common reasons were adultery, spouse abuse, being sentenced to prison for a felony, and insanity. This made it difficult to get a divorce, and a lot of time, effort, and money was spent proving that the other party was at fault. All states and the District of Columbia have passed no-fault divorce laws to allow a divorce simply because at least one of the parties no longer wishes to be married.

Legally there isn’t supposed to be an advantage but….

1. You Feel More in Control During Divorce if You’re the Petitioner  ⎯  The one who files for divorce first has the advantage of being identified as the Petitioner, while the other party is known as the Respondent. Right out of the gate, being the respondent puts you on the defensive. You’re not asking for the terms you want, you’re responding to the petitioner’s claims. This puts them in the power position, where they usually stay for the entirety of the proceedings. It becomes the respondent’s responsibility to answer written requests for discovery and defend themselves against all accusations of abuse, neglect, financial mismanagement, and whatever other accusations are hurled at them. If you go to trial, even on temporary orders, it becomes the judge’s job to answer the petitioner’s claims. If they go the route my ex-husband did, asking for everything under the sun, there is a strong likelihood that they will get more than they should, simply because they asked for it.
2. The Divorce Petitioner Has More “Tools” at Their Disposal and Can Use Those Against You ⎯ The criminal justice system is a tool often used in contentious divorce proceedings because, right or wrong, it is effective. Having your spouse arrested not only makes them look bad but puts the petitioner in the position of being granted everything they’re asking for by default. If you, as the Respondent, are incarcerated then you can’t show up for whatever hearings they call. In your absence, you can lose everything. For example, In my case, I had a bench warrant on a 12-year-old case in which I hadn’t stayed in the jurisdiction during my probationary period. This was something my husband knew about and used against me. After our hearing on temporary orders where I was granted both spousal and child support, primary custody, and the family home, he had me arrested and extradited to the state where the warrant originated. While I was in custody, being driven all around the country in a van full of “fugitives” he called an emergency hearing and everything I had been granted was reversed. He simply told the judge that I was going to be incarcerated for many years, and without any representation to dispute that, the judge granted his petition. The Petitioner uses tools like this often. When the Respondent doesn’t show up and the judge is told incarceration is the reason, the Respondent loses any credibility and the Petitioner is usually granted whatever they’re asking for by default. For instance, I was granted supervised visitation with my child upon my release a few months later, despite the absence of any abuse or neglect on my part, and despite the age of the warrant that caused my incarceration. My ex used that provision to gain leverage and it worked. I gave up much of what I was entitled to just to gain unsupervised time with my son.
3. Filing for Divorce First Gives You the Element of Surprise ⎯ Filing first gives you the element of surprise and the benefit of more time to prepare for the divorce. You can prepare your divorce team and pay for them using community assets, and employ a private investigator if needed, all while your spouse is none the wiser. Speaking from experience, when your spouse is the breadwinner and files first and you are the stay-at-home parent, they will certainly divert their paychecks if they had been deposited in a joint account. They will cancel your credit cards, remove your access to accounts online and ensure you have no cash available to hire your own representation to respond to their divorce petition. I’m not the only mom I know that was forced to borrow from friends and family just to pay a retainer. If your spouse has a high income, as mine did, he will use his position as the Petitioner to bleed your retainer quickly. Those legal fees racked up by unnecessary hearings and back and forth battles? Those are your responsibility unless a judge orders your spouse to pay them. And trust me, that can take years.

1. Taking legal advice from anyone
2. Badmouthing the ex in front of the children
   Putting down or in any way disrespecting your ex — regardless how justified or tempting it may be — creates confusion, guilt, sadness, insecurity and oftentimes depression in kids. When you put down their other parent, your children are likely to interpret it as a put-down of part of them. ‘Something’s wrong with me’ becomes the child’s unconscious belief. Minding your tongue around your children can be one of the most difficult behaviors to master after a divorce — but it is also one of the behaviors that will reap the greatest rewards for your family. Don’t let anger, bitterness and indiscriminate remarks effect and harm your children.
3. Failing to anticipate how long the divorce will be
4. Not including retirement funds and the kids’ college education in the divorce proceedings
5. Not considering alternatives to litigation
6. Refusing to co-parent
7. Letting emotions take over
8. Forgetting about taxes
9. Refusing to compromise

The impact of adultery on divorce proceedings varies from state to state and each jurisdiction places a different weight on allegations of infidelity. In some states, allegations of infidelity during the marriage can impact alimony, property division, and even custody determinations. In other states, adultery in the marriage makes little difference in the ultimate resolution of ancillary divorce matters. As adultery can be difficult to prove, many couples pursue a no-fault divorce action, which does not require either spouse to prove misconduct on the part of the other spouse.

Alimony, or spousal support, is an amount of money awarded from one spouse to the other pursuant to a marital settlement agreement or divorce decree. Alimony can be awarded in one lump sum or monthly installments. In some states, including states that only allow no-fault divorce, a judge may be granted the authority to take a spouse’s misconduct into account when deciding whether to award alimony and in what amount. For example, evidence of adultery may bar the unfaithful spouse from receiving alimony.

Depending on your jurisdiction, you may be able to cite adultery as a ground for divorce. Not every state offers this option, however, and you may have to file for a no-fault divorce, which simply requires a showing of irreconcilable differences or irretrievable breakdown of the marriage. In a no-fault divorce situation, the judge may consider evidence of adultery when deciding other matters related to the divorce, but will not require evidence of the affair to grant the divorce. In a fault-based divorce, the filing spouse must present evidence of the infidelity and prove to the court’s satisfaction that adultery led to the breakdown of the marriage.

And while it’s impossible to predict exactly how the judge will rule in your case, you can anticipate that the judge has one goal in mind: determining your children’s best interests.

The Best-Interests Standard & Child Custody
Many parents find this legal jargon confusing.

Don’t all parents want what’s best for their children? For the most part, yes. However, in the majority of contested child custody cases, it falls to the judge to determine what would be best for the children, despite both parents’ good intentions and competing wishes.

Factors Used to Determine the Custody of Children
While there’s no Magic 8 Ball, you can expect the judge to consider the following factors before making a decision:

• Your children’s ages. While there’s no hard-and-fast rule, courts generally prefer to maintain consistency, especially for young children. As children grow older, the courts tend to be more willing to consider alternative arrangements.
• The wishes of each parent. The courts will want to know what each of you prefers. While that doesn’t mean your wish will be granted, you should expect the judge to ask for each parent’s preferences.
• The quality of the relationship between the children and each parent.
• The mental and physical health of each parent, as well as the children.
• The willingness of each parent to support and facilitate the children’s ongoing relationship with the other parent. This matters to the court because they want to know that neither of you will stand in the way of your children’s relationship with your ex.
• Whether either parent has been providing the majority of the children’s care up to this point. In some jurisdictions, the courts will look to maintain consistency. So if one parent provides the bulk of care while the other travels much of the time, for example, that could impact the judge’s decision.
• The ability of each parent to provide a stable, loving environment. In many cases, the court will ask each parent to submit to a child custody evaluation to learn more about this aspect of the case before making a decision.
• The living accommodations of each parent’s home. In some cases, the courts may want to know that the children will each have their own room.
• Each parent’s ability to provide for the children’s physical needs, emotional wellness, and medical care. The court may also consider the opinions of character witnesses on behalf of each parent.
• The level of adjustment and attachment between the children and their home, school environment, and community/neighborhood.
• How the children will be affected by either continuing the current custody arrangement or disrupting the arrangement.
• The children’s wishes (if they are considered old enough and able to express their own desires).
• Any confirmed evidence of domestic violence, abuse, or neglect by either parent.
• Whether false allegations of abuse or neglect have been brought by either parent against the other.

While these factors are generally considered in determining custody of a child, the specific criteria used vary from state-to-state. To learn more about what to expect in your case, research the child custody laws in your state.

The length of mediation depends on what issues have been agreed to prior to mediation and those issues that need to be addressed during mediation. Also, the amount of time spent in mediation is contingent upon you and your spouse’s willingness to come to agreements that are equitable for the both of you and your willingness to do what is in the best interests of your children. The time spent in mediation can be reduced if you and your spouse are able to come to agreements prior to mediation, or at the least, narrow down your options to a few workable ones. However, if you and your spouse are not able to discuss your divorce outside of mediation, it is strongly recommended that you avoid it at all costs. When couples try to work out issues on their own and it leads to arguments and “drawing lines in the sand”, it makes mediation more difficult and time-consuming.

On average, pre-decree divorce mediation can be completed in 4-10 sessions. Again, how long it takes really depends on what if any communication there is between the divorcing couples and their level of animosity for each other. If either one of the spouses is unwilling to budge from their certain position on a divorce issue, mediation may not be an option for them and they may have to litigate in court. Once this happens, communication is shut down and the fight begins.

In 2005, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decided what happens with your children and assets after a divorce, you during meditation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.

Also, divorce in the court system is public domain. Anybody can sit in court and hear the specifics of your divorce. On the other hand, mediation is confidential, private and conducted behind closed doors. In mediation, there are no attorneys putting up walls between you and your spouse. Mediation is about working together, doing things in the best interests of your children and focusing on being able to be parents for your children for years to come.

Unfortunately, divorce in the court system is designed to put up that wall and limit communication, which inevitably leads to many post-divorce problems and many more hours and thousands of dollars in court.

Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost-effective as possible. The issues covered include but at not limited to the following:

1. Distribution of Property (Assets/Liabilities)
2. Child Custody and Parenting Time
3. Child Support/Maintenance
4. Retirement
5. Taxes

In mediation, the couple, with the help of the mediator, works out agreements on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediator’s job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision-making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.

Mediation is flexible and confidential. It gives you and your spouse a way to settle the conflict between you in a way that helps you to work together as parents. This is extremely important if you have children and must interact with your ex-spouse after you are divorced. Meditation brings about communication between the couple, which can then be used when they must discuss issues in pertaining to the children. Lack of communication may have been one of the main reasons for their divorce. Mediation has the ability to help the couple learn to communicate again, if only for the sake of the children, and make their post-divorce relationship better than their married one.

A divorce mediator is neutral and doesn’t “work” for either parent. That means the mediator can not give advice to either party. They must remain neutral no matter what the situation.
What the mediator can do, though, is assist the divorcing couple in formulating ideas that can eventually lead to agreements that will stand the test of time. That open and free exchange of information frees up both spouses to negotiate with each other in confidence. Because both spouses are working with the same base of information, it usually takes far less time to negotiate a resolution that makes sense to both spouses.
Mediation is voluntary. It continues only for so long as all three of you (your spouse, the mediator, and yourself) want it to. Mediations can be conducted weekly, every two weeks, monthly or however often the couple wants them to be. This is their mediation and they decide everything in the process.

If you have not yet filed for divorce and a custody agreement is not in place, generally you are free to relocate with your kids wherever you wish unless your spouse objects. If your spouse objects to a move, your spouse can seek a court order to prevent you from taking your children out-of-state. If your spouse files for divorce, this too, can make it impossible for you to just leave without permission as you typically cannot just take the children out of the state when divorce is pending.

If you are already divorced or you were never married to the child’s other parent, you should be permitted to take your children out-of-state if you have sole custody of the kids. However, if there is a shared custody arrangement or if your spouse has visitation rights, you will need to seek the other parent’s permission to leave. If obtained, then your custody order can be easily changed and you can move to your new location.

What if The Other Parent Objects to Your Move?
If the other parent does not agree to allow you to move out-of-state, then you will need to go to court to obtain a move-away order before you can leave with your children. Do NOT take your children out-of-state by moving them in violation of a custody order and/or without permission from the other parent as this can be seen as parental kidnapping and is a serious crime.

Instead, you will need to petition the court to seek permission to leave despite the other parent’s objections convincing the court that it is in the best interest of the child to allow you to leave. Often, your case will benefit from showing how you plan to have the child maintain a relationship with the other parent from a new state by using vacation or telephone visits. Regardless of the approach, the court needs to be convinced that leaving the state is the best situation for your child. An experienced California divorce and family law attorney can help you to make a compelling case so you can get permission to leave the state.

There are both fixed costs and variable divorce costs. The fixed costs are filing fees paid to the court, and fees paid to have legal papers served on your spouse. These costs vary from state to state but typically are in the range of $200 to $500. Variable costs include fees for document preparation and legal representation by an attorney. The attorney’s fees can vary immensely, depending on the complexity of the case, and the degree to which any issues are contested. Extra costs may also come into play if the court orders mediation of disputed issues, or if it becomes necessary to hire a financial analyst due to complex property issues.

Contested divorces can be very expensive propositions. With spouses arguing over everything from alimony and child support to who gets custody of the family pet, attorney’s fees can skyrocket quickly. In fact, those monthly legal invoices are what finally cause many couples to hunker down, put animosity aside, and try to peaceably resolve their differences. Often, one spouse will ask the other to pay both sides’ divorce-related legal fees. How successful that demand will depend on the particular facts of your case.

Needs-Based Attorney’s Fees
In most states, family law courts are authorized to order one spouse to contribute to the other spouse’s attorney’s fees, particularly when there is a large income-gap between them. In these cases, judges usually have the ability to order the higher-earning spouse to cover some or all of the lower-earning (or non-earning) spouse’s fees.

In some states, like California, the policy underlying attorney fee awards is that if one spouse can afford to pay for both sides’ fees, while the other spouse would have to proceed without a lawyer absent some contribution, then an order for fees will be considered both necessary and fair, in order to “level the legal playing field” between the parties.

In New Jersey, courts will order an award of attorney’s fees to a lower-earning spouse — often because it’s clear the higher earning spouse will be able to recover financially after the divorce is finalized.

But in situations where neither spouse is making a sizable income, yet there’s still an earnings difference, decisions on attorney’s fees are more likely to vary from state to state. For example, in New Jersey, courts aren’t likely to grant a request for attorney’s fees if the lower-earning spouse will at some point have access to marital assets that can be used to generate funds to pay those fees, such as:

• Bank accounts
• Stocks, or
• A 401(k) retirement plan.

Even if a cash-poor spouse needs money up front for a lawyer, the court may let the spouse use some of the marital property for attorney’s fees, with the understanding that when that property is eventually divided, the other spouse will be reimbursed.

For now, let’s acquire some understanding. And the number one thing for you to understand is the difference between taxable and non-taxable assets. In a perfect world, all your assets and your soon-to-be ex-spouse’s assets would be in tax-deferred retirement accounts. That’s because IRAs and 401ks are easily split in a divorce.

In those situations, all you need is a QDRO from the courts (easy to do) to split the assets. At that point, each person takes their portion as decided by the court and just keeps the money growing in their own IRAs. The beauty of this is that neither one of you incur any tax liability as a result of this split.

Now, it’s likely that your assets aren’t all in retirement accounts. And if your ex offers you a tax-deferred account in exchange for a taxable account, he’s not playing fair. Let me use an example to illustrate. Say your adversarial spouse offers to give you $100,000 in his IRA if you give him the $100,000 in the bank account. If you go for this, your husband will have full access to that $100,000. But if you want access to your money, you’d have to pull the funds out of the IRA and pay taxes and penalties on it. You might be left with $50,000 or less. So if you are negotiating your divorce, make sure to look at your after-tax values – not pre-tax.