One of the problems at the outset of any case is that you never know how the case is going to end. Relatively few cases end up in a full-scale war. Even fewer end up going to all the way to trial. But some do.
Most cases settle. Most people that get divorced end up with an Agreed Decree of Divorce — which is the end product of settlement.
Some get to settlement through negotiation, some with the help of mediation, and some using the Collaborative Process.
No matter how you think your case is going to end, or which process you think will be best for you, your case must have a beginning. All divorces must begin with the filing of an Original Petition for Divorce.
The person filing the petition is known as the Petitioner. The other party is the Respondent. At the end of the case, if you have gotten a result that is acceptable to you — or if you’re lucky, maybe even one that you’re happy with — it won’t matter to you whether you were Petitioner or Respondent.
But, if the case is litigated — whether it is litigated from the beginning or starts as a Collaborative Divorce and “falls out” into litigation — being the Petitioner has its advantages.
At trial, the Petitioner goes first at every stage. For Opening Statements, the Petitioner goes first. For the presentation of evidence, the Petitioner goes first. If it’s a jury trial, for jury selection, the Petitioner goes first. And at the point of Closing Argument, the Petitioner gets to go first and last.
If you are choosing Collaborative Divorce, then you are hoping that you will never have an Opening Statement, presentation of evidence, or Closing Argument. You are hoping that your case will be resolved through the series of meetings that make up the Collaborative Process.
Hopefully, you will get your wish. But, without a reliable crystal ball, there’s no way of knowing how the case will end.
So, if your spouse has not already filed a Petition, you need to decide whether you are going to file before he or she does.
Some people want to talk it over with their spouse. Some attorneys advise that a discussion take place and that a “Joint Petition” be filed. But some attorneys advise that the best way to protect yourself in the event of the worst case happening is to file your case before a discussion with your spouse takes place.
All of those choices have pros and cons.
Talking to the other side allows them the opportunity to file first. But not doing so, may cause a loss of trust at the outset. Filing first with no notice and no discussion will give you greater protection if the worst happens, but may cause your spouse to over-react.
There is no right or wrong answer to the question: What is the best way to start the case?
Practicing law is an art, not a science. And different lawyers will have different opinions of what they think is best for you, given your unique situation.
As always, the best way to find an answer about how to start your case is to consult with an experienced lawyer that can talk to you about all of your options and help you choose the one that you believe is best for you and your family.