Does It Matter Who Files for Divorce First?

Desmond Rhodes  | 

Naturally, a divorce application goes through a court of law. Unless it is an uncontested divorce, you will have to make a court appearance. That being said, those who merely file for divorce first have no legal advantage — as a judge is obligated to hear both parties and make a decision based on such. There may also be some disadvantages of filing for divorce first, as it may look like you are the one initiating the split.

However, there are many individual circumstances surrounding a divorce, and filing for divorce first may carry non-legal benefits for you. The first to file for divorce, or the petitioner, can ready themselves for the upcoming dispute, while the respondent may not have as much time to prepare. It may be best to understand your situation, and how filing first can help or hurt you.

Why Filing for Divorce First Matters

Being the first to file for divorce can make the separation process much easier. Knowing that you are going to divorce can give you time to contemplate your next moves. Instead of struggling to deal with these new circumstances, you can prepare for a comfortable new life.

Advantages to Filing First

In many cases, the benefits of filing for divorce first stem from being prepared. Divorce can often blindside you if you aren’t ready, and filing for divorce first can help you emotionally, legally, and financially brace for your upcoming challenges.

Time to Find an Attorney

Getting your legal affairs in order is a crucial aspect of the process. Having ample time to find the right attorney can help you better navigate this messy and challenging time. A divorce attorney who has had time to look over your particular case can give you advice on how to go forward. You can even take the time to interview multiple attorneys to see which are best for your situation. Having a divorce team on your side can be very advantageous when going forward with many disagreements of divorce.

Knowing which documents to gather, goals for custody, what to do with joint bank accounts and credit cards, and your future living situation can make this chaotic time go much more smoothly. In some cases, filing for divorce first, and having time to find the right attorney, is an advantage. If you are the respondent, you may hastily have to find an attorney who is not as well versed on your particular case.

Gather and Organize Information

You’ll want to present your case as thoroughly as possible. Having all of the information and documents to support your claims in court will be vital for your emotional and financial future. However, it may take time to gather the documents you may need, and filing for divorce first can give you this time.

Financial documents, such as tax and income records, spousal and child support information, mortgages and real estate deeds, and bank statements will all be needed to determine the division of property and custody of your children. Additionally, any prenuptial/postnuptial agreements can also help arrange financial and personal property.

Secure Access to Funds and Credit

Your financial situation will change once your divorce is final. To ensure a smooth acclamation into your new financial arrangement, you’ll need to make sure that your separation does not deprive you of any more money than it has to. Having the time to get your money in order is imperative when setting yourself up for your financial future.

Your standard of living and income will decrease after your divorce, as you will not have two people contributing to your income. It is best to keep track of what assets you have not to lose them in the divorce. Furthermore, you may have to negotiate joint bank accounts and credit cards, and having more time with an attorney can help you know how to close these accounts or leave them the same. In most cases, judges will prevent you and your spouse from selling or buying any marital property. If you are the first to file for divorce, your spouse cannot hide assets, sell off the estate, or make large purchases through bank accounts.

Control the Timing

Divorce puts stress on many life events. Especially in the case of with children, you may want to file for divorce before major conflict and arguing happens between you and your spouse to make it easier on your child.

Filing first for divorce can also help you control the timing of your court proceedings. In many cases, the judge will hear the petitioner’s claim first. You will be able to give witness testimonies, documents, and exhibits relevant to your case first. The respondent will also get to present their evidence, however, petitioner’s may even get a final rebuttal to the respondent’s arguments.

Being the last argument a judge hears may be advantageous in winning the case.

Prepare Mentally and Emotionally

A divorce is a decision that carries significant implications. If you are the first to file for divorce, you have probably thought over what it means to separate from your spouse. Rather than being completely caught off guard and left vulnerable, a petitioner can prepare themselves mentally and emotionally for what is about to come. You will also have time to build up a support group and find comfort in your friends and family. Filing first will allow you time mentally prepare for the separation.

Disadvantages of Filing for Divorce First

While filing for divorce first may have its advantages, you’ll also want to look at how it will negatively affect you. You may have a concern that filing for divorce first is an admission that you initiated the separation and that the divorce was your fault. This is of no interest to the courts, however, once you file for divorce and serve your spouse papers, there usually is no going back. Once you have told your spouse that you want a divorce, reconciliation can be extremely difficult.

Additionally, there may be some expenses that come with filing for divorce first. The petitioner in a divorce may have to pay the filing fees. Furthermore, if you are planning on using a divorce attorney, you will have to pay them for the work they do including time they spend on your petition before filing. These expenses will have to be accounted for, especially given your new coming financial circumstances.

Who Should File for Divorce First

There is no legal advantage in filing for divorce first. In many cases, being the first to file for divorce depends on your circumstances and how prepared you want to be. Divorce is sometimes a messy and complicated event, and being adequately prepared can save you money and grief.

If you or your spouse are incarcerated, either party may file for divorce. You can acquire the proper paperwork to file for divorce in jail or prison, as well as divorce your spouse who is in jail under certain qualifying factors.

Overall, if you can amicably discuss divorce with your spouse, it may be advantageous for both of you. Discussing divorce with your spouse may offer the chance for marriage counseling, allow both of you to get your finances in order, and let you both to mentally and emotionally prepare for the separation.


Image Source: Pixabay

Desmond Rhodes is a writer out of the Northwest. A philosopher, gamer, and enjoys his Hunter S. Thompson.

This post was updated January 16, 2019. It was originally published December 26, 2018.