Does it Matter Who Files for Divorce First?

Spouses who are about to go through a divorce often ask if there are rewards or consequences for not initiating the divorce claim. The truth is – there could be rewards or harsher consequences for filing first or for being docile.

Why You Should Consider Filing First

What are the different benefits a moving spouse may have for filing the divorce petition over the non-moving spouse? They include:

  • Payment of Filing Fees: Filing a divorce claim involves court fees for processing the initial paperwork. It is not unusual for the moving spouse to request in the petition for the non-moving spouse to pay half or more of the filing fees.
  • The Pace of the Proceedings: Often, the moving spouse dictates the momentum of the divorce proceedings.
  • First Impressions May Count: From the initial paperwork, the divorce judge gets his or her first impressions of the situation. If the moving spouse is a compelling brief writer, he or she may misrepresent facts and grey areas to the judge, and it may be hard to convince the judge to believe otherwise.

Who Files For Divorce First

Either spouse can begin the divorce process by filing the petition. Filing a divorce claim is usually the last option for couples who can no longer patch up the issues tearing the marriage apart. Often, it is not the happy ending the couple looked forward to when they got married. Hence, the great reluctance to file for divorce first.

But is there any advantage to initiating the divorce legally?

It is important to note that there is nothing wrong with either filing first or waiting to be the defendant. But there could be consequences for being the waiting spouse. While the court will give equal attention to each spouse’s brief, being the first may give an edge in helping the court to form a first opinion.

What to Expect When You File for Divorce First

Initiating divorce proceedings includes some important steps to ensure the claim is accepted for filing. The following details must be included in the paperwork:

  • the (legal) grounds for the divorce;
  • a statement informing the court that either you or your spouse meets the state’s residency requirements for divorce; and
  • other statutory declarations or statements required by the state’s laws.

Since divorce laws vary per state, it is usual for the residency requirements and grounds for divorce to also vary from state to state.

Some states provide the option of filing a “no-fault” divorce where the moving spouse is not willing to blame either party for the divorce. In contrast, he can also file a “fault” divorce petition citing the other spouse or himself/herself as responsible for the marital breakup e.g., infidelity or neglect.

Filing a “no-fault” or “fault” divorce has its implications on the proceedings. It is irrelevant whether both spouses agree on going through with a divorce or not. If you require assistance to know which you should file, you may contact an experienced family law attorney in your state for legal advice.

For divorce petitions to be accepted in the courts, most states require some residency conditions to be met. For instance, at least one of the spouses must have lived anywhere in the state for at least 3 – 12 months and stayed in the county for 10 days to 6 months.

Who is the Plaintiff in the Divorce Proceedings?

Basically, like almost every other private lawsuit between individuals, there are two parties to a divorce, namely:

  1. Plaintiff – This is the person who initiates the proceedings.
  2. Defendant – This is the person to respond to the divorce claim.

Filing a divorce petition implies that you will be bearing the initial costs of the suit, such as filing fees and payment for the service of the summons on your spouse. From there onward, the costs are not of much difference between either spouse.

Benefits of Filing for Divorce First

It can be a difficult realization for existing couples to conclude that they would have to go through divorce proceedings. When you realize that the marriage is beyond salvation, you may go ahead to file for divorce first.

The nature of the break up can also be a determining factor. If your former spouse has the potential to become volatile, it may be best to use the surprise element to catch him or her off-guard. You will have the opportunity to properly think through your petition and adequately present the divorce claim. Other advantages of filing first for divorce include:

  • Claim Temporary Immediate Reliefs:

Filing first for a divorce could entitle you to temporary court orders granting you the custody of the children and alimony, especially in a relationship where there is a history of abuse or instability from your ex.

  • The Location of Divorce Proceedings:

Since divorce laws vary per state, it allows the moving spouse to decide which state is most favorable to his or her strategy or claims. This is where they have met the requirements to file in more than one state.

  • Deciding how Timeline of the Process:

In some states like California, you can have the assets and marital property divided up sooner than the timeline obtainable in other climes. This is because divorce is treated as community property and marital property is equally shared between the partners.

  • Prevent your Spouse from Taking Advantage of You: 

During a break-up, a spouse may realize the relationship is heading for the rocks and begin to hide assets and money or even stifle the cash flow in the relationship. By filing first, you can prevent that from happening or continuing.

The Negatives of Filing First

There is the other side of the coin for the moving spouse in some instances. Most of the cons circle around money and strategy. They are:

  • May Signify the Broken Last Straw – Deciding to file first for a divorce often shows that you genuinely believe that little or nothing can be done to save the marriage. Due to the very formal nature of a divorce, it also often kills the respite for reconciliation and may create a more tense environment between you and your soon-to-be-ex.
  • You Show Your Hand First – Claiming a relief(s) is an important feature of the legal paperwork in a divorce petition. This implies that your spouse will see your demands upfront and will have the opportunity to respond to the facts (sometimes by attempting to discountenance these facts or your personality) in your claim and state counter-demands.
  • Filing Fees – You may pay more in terms of court and attorney fees when you file first. It also means that you must demonstrate to the court that you are a serious litigant by always attending court sittings and meeting filing deadlines to avoid fines.

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