Does It Matter Who Files for Divorce First?

Does It Matter Who Files for Divorce First?

Stearns Law unpack the advantages and disadvantages of filing for a divorce first. 

Filing for divorce can be a difficult decision. Sometimes, that decision is taken out of your hands when your spouse files. But does it matter who files for divorce first? Well, it might. In most cases, it can be advantageous to file for divorce first, but that is not a blanket statement that applies to 100% of divorces.

It is very important to understand how filing for divorce may impact your specific situation. That can lead you to make the right decision, which could be to wait and let your spouse file instead. So, how can you decide whether to file for divorce first? Here is what to consider.

The Advantages of Filing First

When you file for divorce, it may put you at an advantage over your spouse. You will have the “upper hand,” especially if they were not expecting a divorce while you have had time to prepare. There are other strategic options that may benefit you.

The person who files for divorce first may also have some choices as to which county and state they file in. It is not possible to just pick any random location and file there, but it is possible to have some options when there are ties to more than one location. The opportunity to file in a particular county, for example, may be beneficial depending on the judges in that county. The same may be true of a different state, where divorce laws may be more, or less, lenient.

One of the biggest potential advantages to filing first, however, is the opportunity to have some control over the time at which the proceedings start. By performing due diligence and preparing in advance, you can “start the clock” at a time you choose by being the one to file for divorce. You will then have a better idea of a timeline as to when hearings and discovery requirements will need to be addressed. That control over when the divorce is initiated can be very important.

Filing first also gives your attorney the right to certain trial advantages. The person filing first will have the right to speak to the court first, as well as speak last.  If litigation is expected, your attorney will want to file first in most cases for this reason.  Although family court is generally liberal with these types of rules they do provide the parameters for the courtroom decorum.

The Disadvantages of Filing First

There are very few disadvantages to being the first one to file for divorce. From an emotional and mental standpoint, though, you may feel like the “bad guy.” Still, divorce is a legal process that will have to be handled at some point if you want to end your marriage. Waiting on a reluctant spouse to file may become stressful for you and contribute to mental and physical health issues.

When you file first, the only real disadvantage will likely be the way you are perceived by some, who may be shocked or surprised that you are divorcing. Your rights and responsibilities will not change, and you will not gain any advantage by waiting for your spouse to file. In most cases, a spouse who wants out of a marriage is better off to prepare themselves and then file.

Another aspect to consider is reconciliation. Even if you know your spouse is considering filing for divorce, you may still want to work on the marriage.  If that is true, then you would not want to let filing for divorce first get in the way of a possible reconciliation.  Once a lawsuit is filed that brings in attorneys and others who influence the decision making.   A divorce attorney is going to get you divorced.  If you do not want to get divorced, then you would want to seek individual or marital counselling and work on the marriage.

How to Begin the Process of Filing for Divorce

To begin the process of filing for divorce, your best option is to work with an attorney who can help. By talking to a legal professional, you can explore your options and understand the types of decisions you will need to make. You can also find out about any special circumstances that may surround your case, and ask questions regarding issues such as alimony and child custody. Reaching out to a divorce attorney is the right first step.


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