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Does It Matter Who Files for Divorce First?

It does not matter who files for divorce first when it comes to the outcome of property division, spousal support, or child custody in a divorce. There could be both advantages and disadvantages to filing first, but filing has no direct effect on the outcome of your case. If you are contending with a divorce […]
Divorce Attorney
Divorce Attorney

It does not matter who files for divorce first when it comes to the outcome of property division, spousal support, or child custody in a divorce. There could be both advantages and disadvantages to filing first, but filing has no direct effect on the outcome of your case. If you are contending with a divorce or considering whether divorce is right for you, you should consider legal help. Many offer no-obligation evaluations. Working with a divorce lawyer could streamline the legal process and put your anxieties at rest.

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Who Files First Determines if You Are the Plaintiff or Defendant

The party who files the divorce petition is the plaintiff in the case. The spouse forced to respond to the petition is the defendant. Since most states now recognize no-fault divorce, this does not mean much when it comes to the burden of proof and presenting evidence to show why the marriage cannot continue. In a fault-based divorce, the plaintiff and their legal team must show that the alleged behavior occurred. If there is no evidence to prove the accusations, the court will likely still grant the divorce. Judges do not want to force couples to remain married when they do not want to. Another reason why being the plaintiff matters is because of the way court proceedings work. There is a strict procedure requiring the plaintiff to go first, followed by the defendant. Then, the plaintiff has an opportunity to respond. If time allows, both parties could present closing arguments, but this isn’t guaranteed.

Advantages of Filing for Divorce First

While who files first has no direct effect on the case’s outcome or certain issues (such as custody or property division), being the first spouse to file a divorce petition has some advantages. Your attorney could want you to file first because:

You Can Avoid Retaliation

In some cases, having the element of surprise is essential. If you have an abusive spouse or fear their anger or retaliation, you need to make the first move. Leaving an abusive or frightening relationship is a brave but difficult choice. When you’re at the helm of legal proceedings, you could reduce potential complications. It could also be possible to receive an injunction that limits your spouse’s contact with you during this time. Depending on the state, this could require evidence of a history of abusive behavior. Your attorney can explain more about filing an injunction during your partnership.

You Could Feel More in Control of the Process

When facing marriage dissolution, most people feel like their lives are out of control. They do not know what to expect, where they will live, or what will happen to their relationship with their children. You could have more control over divorce proceedings by filing first, at least initially. Your attorney can file motions, set court dates, and guide you through each step. While there is no guarantee about the outcome of the case, and you likely still have many things you are unsure about, filing first can offer a sense of control and peace of mind.

You Choose the Jurisdiction

In many cases, both spouses reside in the same area. It is easy to determine where to file the divorce: your shared county of residence. However, some divorces could have multiple jurisdictions. You could have options if you and your spouse live in separate counties. As the spouse who files first, you could choose where to file. Laws do not differ significantly from county to county, but how the judges rule could. Your attorney can offer advice based on your case’s facts. If one of you lives in another state, this could matter more. State laws differ significantly regarding alimony, property division, business valuation, and custody. Your attorney can help you decide where to file. However, there are residency requirements you must meet. For example, Alabama law requires that at least one spouse lives in the county for six months before filing for divorce there. Again, a legal professional can explain more and guide you through the appropriate steps.

You Have Time to Prepare

One significant advantage of filing first is that you have time to prepare. You can get on firm financial footing. This could include applying for a new credit card in only your name, opening your own bank account, finding an apartment, saving to pay your attorney, and taking other steps that could help after you file. Once one spouse files for divorce, neither party can move assets or make other unapproved financial changes. This could make it difficult to pay for a new place to live, purchase new furniture, or make other necessary moves quickly. Of course, psychological preparation also makes a difference. When you choose to act, you know you will not get blindsided by your partner filing first. Depending on the circumstances, it often takes a long time to decide whether you are ready to take this step. Even in bad or abusive relationships, it can be difficult. When you know it is time, and you take action, it is an advantage.

You Could Have Access to Relief Faster

Sometimes, you file your divorce because your spouse refuses. Filing for divorce is the only way to get monetary relief, such as spousal and child support, during separation and divorce. If your spouse walks out or refuses to contribute to the household financially, requesting relief through the court system could be the only way for you to pay bills and support your family. Judges often issue temporary spousal support orders to support one partner while the divorce is pending. The legal system sometimes calls this “alimony pendente lite.” This is essential monetary support for a spouse left handling all the bills on their own. The court sometimes also issues temporary child support orders in these cases. Your attorney can request these types of relief as soon as you file for divorce in most jurisdictions.

Disadvantages of Filing for Divorce First

There are also a few disadvantages of filing for divorce first. With help from your attorney, you should weigh the pros and cons and decide on a strategic approach. The cons of being the first to file include:

You Have to Include Your Demands, Allegations, and Other Details

When you file a divorce petition, you must include many details you would probably rather not discuss. It is difficult for many people to open up about the details of their marriage, why it is not working, and what they hope to receive from the divorce. This is not as challenging as it used to be, thanks to no-fault divorces. However, it is still necessary to discuss what feels very private with attorneys, the judge, and others involved in the process. In addition, you will need to outline your desires for property division, child custody, alimony, child support, and more. To some, this feels like showing your hand in a card game. Your spouse can see your demands and respond based on them when you do not have this advantage.

It Could Cost More

Being the first to file often costs more, although this might not be significant. You must pay your attorney for preparing the petition, investigating your allegations, and gathering financial information. There are also filing fees to pay. These expenses could add up quickly, meaning you must pay before your spouse even receives the complaint. However, the details of your case, attorney’s fees, and other circumstances play a role in how much more it costs the plaintiff than the defendant.

Your Spouse Could Blame You for the Divorce

When spouses have tried to reconcile, the first to file often bears the blame for the divorce. This can be difficult even when there is no path to a positive end, and you believe the marriage is over.

How an Attorney Helps Clients Make Decisions About Divorce

Your divorce attorney can help you decide if filing for divorce is the best option based on your circumstances. They can explain the pros and cons of being the first to file, weigh them with you, and help you decide. They can also prepare your petition and ensure your spouse, the judge, and others hear your voice throughout this process. Speaking with an attorney is a good way to get answers to your questions about divorce law, the process, and other concerns you have. Most offer no-obligation case evaluations where you can bring up your questions and concerns. A professional can also advise you on your next steps moving forward.

Commonly Asked Questions About Filing for Divorce

Some of the most common questions people have about filing for divorce include:

Where Do I File for Divorce?

Where you file for divorce depends on where you live. Most areas have residency requirements, setting a period you must live in the county before filing for divorce there. This is usually six months to a year. If you and your spouse live in separate counties, you could have a choice of where to file. Working with your attorney to determine the county most advantageous to your case is a good idea.

When Should I Talk to an Attorney When Considering Divorce?

The earlier you speak with a divorce lawyer, the better. As noted, many offer no-obligation, confidential consultations, so you do not have to worry if you change your mind or reconcile. Also, no one will know you were contemplating divorce unless you tell them personally. An early consultation with a lawyer can help you understand the facts of your case, your options, and the next steps if you choose to take them. You can discuss where to file, if you want to file first, and other common questions.

Do I Have to Outline What I Want in My Divorce Petition?

If you file first, you must include your demands for the divorce in the petition. This could include details about alimony, property division, child custody and visitation, and more. It will also outline why you are seeking a divorce and include any accusations against your spouse. Your attorney can help you make these decisions and offer support when needed. This divorce process is never easy, but you could have an advocate by your side when you work with a trusted divorce lawyer.

What Happens After I File?

If you are the first to file, your spouse will receive a copy of the petition within a few days. How they receive it will depend on the rules of your jurisdiction. Generally, a disinterested party (such as a county representative) may serve the paperwork. Your soon-to-be-former spouse will have time to hire an attorney, develop a strategy, and respond to the petition. Extensions are possible and common in many areas.

What Should I Do If My Spouse Files for Divorce First?

If your spouse files for divorce, you have legal options. For instance, you could partner with a family law attorney. You only have a limited time to prepare and file your response. Your lawyer can help you decide your strategy and handle the necessary paperwork on your behalf. They can also answer the questions you have and address any concerns. It is only natural to have a lot of questions while considering divorce. Your life is changing significantly, and you may feel you have little control over what is happening. You should not worry that it will affect your case if your spouse files first, though. There is no direct effect on the outcome of your divorce just because they are the plaintiff and you are the defendant.

Divorce Attorney, Charlotte Christian

You Can Talk to a Divorce Lawyer About Your Filing Options Today

If you are considering divorce, you should consider contacting an attorney as soon as possible. Depending on the circumstances, there could be advantages to filing first. Your attorney could want to use these advantages as a part of your case’s strategy. However, if your spouse already filed, know that who files for divorce first has no direct effect on the outcome of the divorce, including property division, custody, or child support.


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