ARE THERE ANY BENEFITS IN FILING FIRST FOR DIVORCE?

In some cases, there are benefits to filing first.

A divorce is a civil action, similar to a car accident or a breach of contract case. Like any civil action, it begins with a petition outlining your allegations and what you want the court to do. In a divorce action, the petition includes details such as the date of marriage, the need for a parenting plan if there are children, the division of assets and debts, and any request for spousal maintenance. Essentially, it says, "Judge, if we can't resolve these issues ourselves, we need you to decide for us." When the petition is filed, the case is assigned to a judge.

In an ex parte hearing, the judge listens to only one side of the story. In Kansas, you can obtain ex parte temporary orders for a parenting plan, spousal maintenance, child support, and, in some cases, even for removing a party from the marital residence. These orders take effect as soon as the other party is served. If the served party disagrees with the ex parte orders, Kansas law mandates that the court must hold a full hearing on their motion to modify the orders. This hearing must occur within fourteen days of the request, not from the date the motion is filed.

Often, this process is initiated by emailing the judge's administrative assistant. By "full hearing," I mean that both parties and their lawyers are present. If you approach this process straightforwardly, without misleading the judge or omitting facts during the ex parte hearing, you can gain an advantage in the full hearing. You can then tell the judge, "Your Honor, we presented both sides of the story as we understood it at the ex parte hearing," which is an ethical obligation. If you have done this, you should be in a strong position at the full hearing. In Kansas, it is often advantageous to be the first to file.

Can Something Be Done To Counter False Allegations Made By A Spouse In A Divorce Proceeding?

Yes, you can always file a motion to modify the temporary orders. You can ask for a hearing on that motion and you can present evidence that the statements made by the petitioner were not accurate. You can then ask the judge to modify the orders to be consistent with the evidence.