Does It Matter Who Files For Divorce First? Yes, But…

Divorces can get tricky. In fact, most of the time they are messy, time-consuming, and both physically and emotionally draining. Not to mention that it can drain your bank account fast, too.

The subject of divorce is also very sensitive. And, some of the important questions asked about the divorce process center around who files for divorce first. How does that affect things, if at all?

Below, we take a look at the most common question related to this, which is “Does it matter who files for divorce first?” And, if it does, how that can affect the divorce process.

Does It Matter Who Files For Divorce First?

To answer the question, yes. It actually does matter who files for the divorce first. There are particular reasons why it matters if you or your spouse file for divorce first. We’ll cover them below.

First, let’s just cover some jargon you’ll need to know to understand all this. The spouse who files for the divorce is known as the “petitioner”. And the person who does not is known as the “defendant” or “respondent.” Okay, with that taken care of, let’s look into this question more deeply.

The Benefits of Filing for Divorce First

There are definitely some advantages to being the petitioner spouse. The first benefit of being the petitioner is that you can file for divorce in the state and county where you reside. 

The divorce process differs on a state-by-state basis. But pretty much all of them have residency requirements you have to meet. Basically, you have to be a resident (often living there for 6 months or more) of the county/state where you wish to file for divorce. So, depending on your situation, filing in your preferred county/state may be beneficial to your situation.

Another benefit of being the petitioner is that you get to choose when you will file for divorce. That means you are the one in control of the time and schedule.

In addition to that, filing for the divorce first will grant you more clarity as to when certain events such as hearings, discovery timelines, and deadlines for mediation before a trial will occur. This will give you a chance to prepare the necessary resources for your divorce. 

The last benefit of filing first that we’ll mention here is that you get the first chance to make an impression on the court. This is because the initial divorce paperwork contains your (petitioner’s) statements about the divorce grounds or the reason/fault for the divorce. 

Potential Disadvantages of Filing For Divorce First

Filing for divorce first can have several disadvantages, depending on the specific circumstances of your situation and the legal framework in your jurisdiction. Here are some potential downsides:

1. Legal Costs: The spouse who files for divorce (the petitioner) might incur immediate legal costs. This includes attorney fees for filing the petition and potentially other initial legal expenses. These costs can add up quickly, especially in a contested divorce.
2. Public Perception: In some cases, there might be a social or emotional impact associated with being the one to initiate the divorce. Friends, family, or acquaintances may have their own perceptions or judgments about the person who filed first, which can be challenging to handle.
3. Strategic Disadvantages: In certain situations, filing first could offer a strategic advantage to the other spouse (the respondent). The respondent has more time to prepare their response and legal strategy after being served with divorce papers, which can sometimes work in their favor.
4. Escalation of Conflict: Initiating a divorce can escalate tensions between spouses. If the relationship is already strained, filing for divorce can further deteriorate communication and cooperation, which is particularly disadvantageous when children are involved or when a peaceful settlement is preferred.
5. Emotional Toll: Being the initiator of a divorce can carry an emotional burden. Some individuals may struggle with guilt, especially if they feel responsible for the end of the marriage or if they perceive that they are causing harm to their spouse or children.
6. Risk of Retaliatory Actions: Filing for divorce first can sometimes provoke retaliatory actions by the other spouse, such as hiding assets, increasing spending, or becoming uncooperative in other areas like child custody or property division.
7. Impact on Negotiations: The initial filing can set the tone for the divorce proceedings. If the petition is perceived as aggressive or unfair, it might lead to a more contentious and less cooperative negotiation process.
8. Financial Planning Disruption: Filing for divorce can disrupt financial planning, especially if the couple is working towards common financial goals. It might lead to immediate financial separation and complications in joint finances.
9. Loss of Control Over Timing: Once the divorce process is initiated, the petitioner has less control over the timing and progression of the proceedings. The legal process follows its own timeline, which can be lengthy and unpredictable.
10. Emotional Readiness of Children: If children are involved, the timing of the divorce filing can impact them significantly. If they are not emotionally ready to handle the news of their parent’s separation, it can lead to additional emotional and psychological challenges.

You’ll want to weigh these potential disadvantages against the specific circumstances of your situation and consult with a legal professional before making a decision to file for divorce. The right approach depends heavily on personal, financial, and legal factors unique to each case.

More About Filing First for Divorce

When you file for the divorce first, you get the chance to ask for temporary orders. If you are the divorce petitioner, you can ask the court where you have the chance to file for temporary orders before your spouse, or in this case, before the defendant gets notified of the divorce filing. 

However, we warn you not to be overconfident as the defendant may have the chance to respond to your temporary orders. Their response is filed before or during their response to the divorce petition. 

Being the petitioner also gives you the time necessary to prepare. You may get copies of necessary documents, such as financial documents, during this time. 

What To Do If Your Spouse Files First

Handling the situation where your spouse has filed for divorce first can be emotionally challenging and legally complex. Here are some steps to consider in navigating this situation:

1. Process Your Emotions: It’s important to acknowledge and process your emotions. You may experience a range of feelings such as shock, sadness, anger, or relief. Consider seeking support from friends, family, or a professional counselor to help you cope with these emotions.
2. Consult a Lawyer: As soon as possible, consult with a divorce attorney. They can provide legal advice specific to your situation, inform you of your rights and responsibilities, and guide you through the legal process. It’s crucial to get legal counsel even if the divorce seems amicable, as laws can vary greatly by location and individual circumstances.
3. Understand the Divorce Process: Educate yourself about the divorce process in your jurisdiction. Divorce laws can vary significantly from place to place. Your lawyer can explain the specific steps involved, such as responding to the divorce petition, the discovery process, mediation, and, if necessary, trial.
4. Gather Important Documents: Start collecting important documents like financial records, property deeds, tax returns, bank statements, and any prenuptial agreements. This information will be crucial in the legal proceedings, particularly for matters related to asset division, child support, and alimony.
5. Consider Your Children: If you have children, their well-being should be a top priority. Shield them from conflict and avoid involving them in disputes. Consider what parenting arrangements will be in the best interests of the children and be prepared to discuss custody and visitation.
6. Plan Financially: Divorce can have significant financial implications. It may be wise to start planning for a separate financial future. This might include opening individual bank accounts, adjusting your budget, and understanding how your income, expenses, and assets will be affected.
7. Seek Mediation if Possible: If both parties are willing, mediation can be a less adversarial and more cost-effective way to resolve disputes. A mediator can help you and your spouse reach agreements on various aspects of the divorce.
8. Stay Informed and Involved: Throughout the process, stay informed about your case and maintain regular communication with your lawyer. Make decisions based on rational judgment and legal advice rather than emotions.
9. Look After Your Health: Divorce can be stressful, so it’s essential to look after your physical and mental health. Maintain a healthy lifestyle, including regular exercise, a balanced diet, and sufficient sleep.
10. Plan for the Future: Finally, start thinking about your life post-divorce. This can include considering where you’ll live, your career plans, and your social life. It’s a time for new beginnings and personal growth.

Remember, every divorce is unique, and what works for one person may not work for another. Try to find the right balance between legal strategy, financial planning, and emotional support.