Does It Matter When You File for Divorce?

When we ask the question, "Does it matter when you file for divorce?" we're not asking if you should, say, wait to file until after Christmas or until the kids are in college. Instead, we're referring to a question we occasionally get from clients, who wonder if there is an advantage or disadvantage to filing for divorce sooner or later, or at a certain time of year.

In general, the best time to file for divorce is when you're ready—emotionally, mentally, and financially. Beyond that general guidance, which we'll get back to, there are certain considerations regarding the timing of your divorce.

When Should You File for Divorce?

Most people take quite a bit of time between first considering divorce and making a firm decision that this is the path they want to take. Once they have resolved in their minds that they will be filing for divorce, they tend to want to go full steam ahead, whether or not that is in their best interest.

The date you file the papers with the district court to start your divorce may affect the division of property in your case. A Utah court will divide “marital,” as opposed to “separate” property in your divorce. In Utah, courts assign a value to the marital estate at one of three times: the date you and your spouse separated, the date of your divorce, or the date of your trial, if you have one.

Utah is an “equitable division” state, meaning that courts divide marital property in a way that is equitable, or fair under all the circumstances. In general, in a longer-term marriage, the division of property is usually close to equal. In a shorter-term marriage, courts may try to restore the divorcing spouses to the economic condition they were in prior to the marriage.

There are no real tax incentives to file, or not file, at a particular time. A couple of years ago, when the tax laws regarding alimony were changing, it made sense for someone who expected to pay alimony to try to get their divorce finalized so that they would be able to deduct their alimony payments from income. The window to do so has closed now, however, so the rush to file for divorce for that reason has closed.

If you and your spouse are both considering filing, it does not matter much from a legal standpoint which of you actually does so. The primary advantage of being the first to file is that you can do so in the county where you live, and thus choose the court where your divorce will be heard. If your spouse lives several counties away, you may prefer to file first so that you don’t have to travel a long distance to their county to attend hearings or file documents with the court.

What Really Matters When You Time Your Divorce Filing

Divorces do tend to spike at certain times of year: think after New Year’s, or in the fall, when kids go back to school. What those times have in common is the theme of “new beginnings.” In other words, that’s when people feel like making a fresh start. But feelings can be a poor compass for an undertaking as important as divorce.

To the extent timing your divorce matters to your finances, think in terms of a checklist:

• Have you gathered all the financial documents your attorney will need? These include income tax returns and pay stubs for you and your spouse, financial and retirement account statements, business financial statements, and documentation of other assets and debts. You may want to make copies and keep them in a secure location outside of your home.
• Have you made a financial plan to pay for your divorce? This may include setting funds aside in a non-joint account or making plans to borrow from a family member. Divorce can be expensive, and good divorce attorneys will discuss with you how to keep costs down. Still, it is helpful and reassuring to know that you have funds set aside to get you through the process.
• If you have not done so, take steps to establish your own credit. Get a copy of your credit report, especially if you have not done so in a while. Make sure to correct any errors in the report.
• Research and interview divorce attorneys. Any divorce attorney can help you file for divorce, but the quality of your attorney and how you connect with her makes a difference to the outcome of your case and your experience of the process. If at all possible, take the time to find an attorney whose skill and philosophy you are comfortable with.

If you have questions about timing your divorce, or preparing financially to take this step, please contact Barton Wood to schedule a consultation.