Does It Matter Who Files for Divorce First?

Why Does It Matter Who Files for Divorce First?

A divorce case begins when one of the spouses files a divorce petition or complaint with the court clerk’s office. The party making the first divorce filing is known as the “petitioner” in most states. The other spouse is the “respondent.”

The spouse filing first may have the upper hand when it comes to the tone of the case. The initial divorce filing can start a difficult litigation process, putting the respondent on defense from the beginning. Depending on the situation, this can lead to the possibility of an uncontested divorce ending in a settlement agreement.

Filing first has some disadvantages, as well. For instance, the petitioner is often responsible for various fees.

Possible Advantages of Filing First

The following are possible advantages when a spouse files for divorce first:

• Choice of jurisdiction: State family laws have residency requirements for divorce cases. When divorcing spouses live in different counties, the petitioner may choose the county that is most convenient for them.
• Timing of the case: The petitioner can file when they are able to afford attorney fees and other costs. The respondent may not be in as secure a financial position. The petitioner can also set the pace of the divorce proceedings. For example, litigation will begin quickly if they begin the case with requests for temporary orders.
• Grounds for divorce: In a no-fault divorce, the parties do not have to prove that either spouse was at fault for the breakup of the marriage. Many states still allow fault-based grounds for divorce, such as adultery or cruel treatment. The petitioner is often in a better position to allege fault-based grounds for divorce.
• Litigation strategy: A petitioner can ask the court for temporary orders that remain in effect as long as the divorce case is pending. This may include provisions for child support, child custody, and spousal support, as well as restrictions on the use or sale of marital assets and the use of credit cards that could increase the couple’s debt.
• Protective orders: A petitioner is in a better position to get restraining orders in situations where they allege domestic violence or other misconduct has occurred.

Disadvantages of Filing First

Filing first can also present disadvantages:

• Expenses: The petitioner bears several significant expenses. The filing fee for the divorce can be several hundred dollars. That party is responsible for serving the respondent with the divorce papers. Unless the respondent agrees in writing to waive service, the petitioner must pay a process server to deliver the paperwork to the respondent in person.
• Notification to the respondent: The divorce petition lays all of the petitioner’s cards on the table. The respondent knows what that party is seeking and what evidence they probably have, so they have time to prepare a response.
• Appearance of aggression: The tone of the initial divorce filing could make the petitioner appear vindictive towards the respondent. At times, this choice of tone is warranted, but it can also do harm to the petitioner as much as or more than the respondent.

Things to Consider If You File for Divorce First

While making the first move in a divorce case can have advantages, you should consider how you want to approach the filing divorce papers. Factors that you should evaluate before filing first may include the following:

• What are the financial implications of filing first? Can you bear the costs involved? Do you plan on making any big purchases soon? If you file for divorce, you might have to postpone anything that significantly affects your marital or community property.
• Are you emotionally ready? Once you file, the case may move quickly or very slowly. Either can be emotionally difficult.
• Are you prepared in a practical sense? Do you and your spouse still live together? Do you have access to bank statements and other records that you’ll need? Careful reflection on these questions and advanced preparation are crucial before you decide to file for divorce.
• Do you believe that you and your spouse can reach a settlement agreement? If so, it may be worth trying to negotiate issues like property division, child custody, or alimony. You can then present an agreed divorce decree to the court. By blindsiding your spouse with court papers, you could turn an uncontested divorce into a long, drawn-out fight.

What Legal Steps Are Involved in Filing for Divorce?

Divorce laws vary from state to state, but many rules and regulations are similar throughout the country. The filing process typically involves these steps:

• Confirm that you meet the residency requirements: State laws require that one or both of you have lived in the state and county for a minimum period of time. This is often six months in the state and 90 days in the county.
• Verify your state’s separation requirements: Some states require that you and your spouse live separately before you may file for or finalize a divorce. For example, in Virginia, the period of separation needed before filing for an uncontested divorce is six months with a separation agreement if you do not have minor children and one year if you do.
• Prepare the divorce papers: A divorce case is essentially a special type of lawsuit. Your state’s divorce laws will cover all of the information you must include in a divorce petition, such as the names of the spouses, the dates of marriage and separation, the grounds for divorce, and the names and birthdates of any minor children.
• File the divorce petition: You must file the petition with the court clerk and pay a filing fee. They will prepare a citation or summons for your spouse.
• Serve your spouse: Unless your spouse signs a waiver of their right to receive service, you must have them served with the paperwork—in person. Constables or sheriff’s deputies often perform this function for a fee, or you can hire a private process server.

Once your spouse has received the paperwork, they have a limited amount of time to hire a lawyer and file an answer with the court.

How Can a Law Firm Help with Your Divorce Filing?

A law firm with family law experience can help advise and guide clients through the divorce process. The benefits of an experienced divorce law firm may include:

• Providing legal advice tailored to a client’s needs
• Drafting necessary legal documents
• Negotiating settlement agreements
• Representing clients in court to protect their rights and interests

Why Work With Cordell & Cordell?

The family law attorneys at Cordell & Cordell have decades of experience providing legal advice and advocacy through all stages of the divorce process. The law firm offers educational opportunities for individuals to learn more about their legal rights in divorce cases through ebooks, podcasts, and other online resources.