Legal proceedings including those involving parenting time and divorce have a legal starting point. This usually involves preparing legal documents which are filed with the court and served on the other party.
However, you don’t have to begin your family law proceeding this way. It may be that you prefer to negotiate the issues, attend mediation or participate in Collaborative Law before you serve or file any legal pleadings. While you always want to get the advice of an attorney before you take any action, know that you have options with how to begin the process. An attorney can help you discuss your options and find a path forward that you believe is the best for your particular case.
Some people are wary of the court process
If the situation is amicable between you and the other person in the matter, you may want to attend mediation prior to filing or serving any legal documents. Some people are wary of the court process making things too contentious and prefer to attempt resolving some or all of the issues before filing any documents in court. This can be a way to avoid ramping up conflict. You can attend mediation with or without attorneys. Even if your mediator is an attorney, he or she is not acting as an attorney in the mediation process and cannot give you legal advice. At a minimum, it is best practice to always have an attorney review a mediation agreement prior to signing. The best insight that we can provide is that you should never sign a legal document without seeking legal advice.
Waiting to file and serve may save you both time and money
By waiting to serve and file, you may find that the proceeding ends up taking less time and costing less than it would have if you had filed and served right away. You may even be able to resolve all issues outside of court and then file an agreement along with any initial required paperwork to streamline the process. In Colorado, if you are filing for a divorce, be aware of the mandatory 91-day waiting period to enter a divorce decree and finalize your divorce. This waiting period begins to toll upon service and filing, and so it is a factor to be aware of when you are considering the timing of commencing the legal process and when you may want or need your divorce finalized.
There is no advantage to filing first
Many people question whether there is an advantage to “filing first” in family law proceedings. The answer, generally, is that there is no advantage to the party who files first. Avoiding a race to courthouse can help people plan in a proactive manner and not in reaction to someone else’s actions. If you are the petitioner or moving party in a family law matter and your case proceeds to hearing, you will be allowed to present your case first. While each side is given equal consideration by the Court, some parties or attorneys may believe there is an advantage to presenting their case first or second.
When to file first
If there are threats of harm to you or your children, or if one parent is threatening to take the children and leave the state, you will want to promptly file your case and seek appropriate protective orders.
As stated above, there are cases and specific circumstances in which filing and serving legal documents is advisable. However, it is important to be aware that there are other options to consider as well if you find yourself in a family law dispute.