Who should file first?

[TickledPink]

I have been advised by a friend that it is better for me if I file for divorce first. She said that the one who files first is the one who asks for the things they want and that the other one is left to fight for it. That doesn't really make sense since I think Indiana is a 50/50 state. Another friend told me that it is better if I let him file first because he has to give a reason for wanting the divorce then instead of me. Also, I was told to not leave my house and to make him leave otherwise I might not be allowed to come back in and get any property or belongings and that if I stay he will have to pay all household expenses until the divorce is final. I have been a housewife for 5 years with a 12 hour a week job. I have a 12 year old son from a previous marriage. Would he have to pay me spousal support until I find suitable employment? I feel greedy asking these questions and I hope it doesn't come to any of this but it's good to know. Thank you.

 

[dorenephilpot]

There's really not a strategic advantage, as far as property issues go, in a race to the courthouse.

If you go first and ask for a restraining order against your soon-to-be-ex, he could, however, be barred from the family home at least temporarily and possibly permanently.

No one in Indiana has to give the specific reason for a divorce. You merely cite that there has been an irretriveable breakdown.

Yes, you can ask for temporary maintenance while the divorce is pending. The court could also order your husband to pay the bills associated with the family home.

You can also ask that he be ordered to pay your attorney fees.

Both really depend on the circumstances. I would need to know more information about income/needs/etc.

Hope this helps.

 

[TickledPink]

More information

I'll make this as brief as possible and hope that I give enough pertinent information. I'm in Indiana.

I have been remarried for 5 years next month. I have a 12 year old son from a previous marriage. I've only worked a part time job, approximately 12 to 15 hours per week during our entire marriage. Before that, I always worked full time as a secretary/customer service rep. We agreed when we married that we would budget based on his income alone so that I could spend more time with my son. My husband has always strongly encouraged this.
He has 401K through his job of 8 years this October. He also has Saving's Bonds his parents gave him before we were married. I sold my home and put the $6000 I received from that either on the down payment for our home together or into our joint savings. We are going to start marriage counseling and I am hopeful that we can work out our problems that have been ongoing almost from the start. My concern is that I gave up everything, my job, my home, my individual savings when I married. If we should divorce, I want to know if I am back to square one with nothing or what assets I have a right to receive. I know I have a right to half the equity on the house, but, when we were having a rather heated discussion a few months ago he said that he would have to make payments to me for the house and that I could have the furnishings that were mine before we were married.
He also suggested that I get a job and an apartment and let my son go live with his dad until I could get on my feet. He gave the impression that since I can't afford this home on my own, I have no rights. He can afford to stay here so I am the one who has to go. I guess he is right there because I couldn't afford this payment on what I would expect to make assuming I can get back into the type of work I held before my marriage. My son takes meds and goes to counseling for ADHD and I am having trouble even getting basic child support from his dad, who will be moving out of state soon.
I intend to find full time work after school starts, but, this Summer with my son's problems it has been difficult. It's been a blessing that I have been able to stay home with him, but, a mistake that I let myself get stale in the job market. I have been doing office software tutorials online in an effort to get my skills up to date.
I want to know what my rights are under these circumstances.

 

[dorenephilpot]

You are entitled to half the value of items that accrued during the marriage, whether it's household goods, equity in a home, whatever.

Whatever each of you inherited is yours.

You'll have a harder time getting maintenance given that you could support yourself. But often the court will order the person who leaves the family home to help support the home if there are children involved as long as the divorce is pending.

Don't let his threats worry you. You have rights.

The part that you put into the family home can be traced and is therefore probably not considered commingled. However, my guess is that the money you put in savings, unless it is still there, would be difficult to pinpoint and would therefore be considered commingled (and therefore marital property).

These kinds of things can be dealt with in a settlement agreement -- or a final hearing.

Hope this helps.