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Does It Matter Who Files for Divorce First?

By Divorce.com staff
Updated Apr 12, 2023

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The decision to get a divorce is only the first of many choices during the divorce process. At least one spouse has to file for divorce, and the person who files may have some advantages during the process.

Here’s what you need to know before you file for divorce regarding what to expect when you file for divorce first.

What Is Custody

What Are the Advantages of Filing for Divorce First?

If you file for divorce first, you’ll have access to many important advantages. Although no one technically “wins” a divorce, it’s a lot easier to navigate negotiations when you take this initial responsibility of the divorce process.

You Start the Clock

The moment you file for divorce, you start the clock on the process.

If you’re ready to begin the process, filing first means you don’t have to wait on your spouse. The court will give dates and timelines, and your spouse has to abide by them.

They’re compelled to move forward. If they fail to respond, you’ll have more control over the outcome of your divorce.

You Set the Tone

When you file first, you’ll have the opportunity to state on the record the reason why you’re filing for divorce. Most states allow couples to file for divorce on the grounds of “irreconcilable differences,” which means that your marriage has reached a point where it can’t be fixed.

Some states allow couples to use faults as grounds for divorce, which essentially indicate that one person is responsible for the end of the marriage. If you live in a state that offers fault divorce and you intend to pursue one, it’s especially important that you file first.

People can be granted a fault divorce when their spouse commits an act recognized by the court as a fault, such as adultery, abandonment, or engaging in abusive behavior. Pursuing a fault divorce will hold your spouse accountable for the undoing of the marriage. If the spouse is found to be at fault, they can face repercussions like loss of child custody or the inability to request alimony payments. The impact of such a decision can be significant.

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You Can Start Implementing Changes Early

If you need immediate solutions to real problems that have occurred as a result of your spouse’s actions, it’s important to file for divorce first. You have the ability to file for temporary or emergency orders at the time you file for divorce.

These orders will stay in place until the court grants a permanent order.

If you’re a homemaker and your spouse abandoned you, filing for divorce can give you the ability to file for temporary custody, temporary child support, and temporary alimony.

If you’re in an urgent financial situation, filing first can make all the difference.

You Can Prevent the Strategic Movement of Assets

If your spouse suspects a divorce is around the corner, they may feel tempted to act dishonestly. They may start selling assets, moving them, or giving them to family members if they’re afraid they’re going to lose those assets in a divorce.

If you’re technically still married and the divorce process hasn’t yet started, they may be allowed to make major moves to preserve assets they don’t want to divide.

The moment you file for divorce, they will receive something called a Joint Preliminary Injunction. This injunction prevents either one of you from making any major moves with cash or assets outside of the standard moves you need to live and maintain your lifestyle.

From that moment on, they won’t be allowed to shift assets around. If they do, they can face repercussions from the court.

You Have a Home Court Advantage

You can file for divorce anywhere you meet the residency requirement, which usually involves living in the county where you’ve filed for anywhere from 90 days to six months. Your divorce will take place in the court where you filed the paperwork.

Your spouse will have to come to you if you don’t currently live in the same place. If your spouse lives far away and you’re unable to travel for court appearances, it’s important to file first. The burden of travel is shifted to your spouse.

This is especially helpful if you have children. You won’t need to arrange for child care while you travel, and you don’t need to disrupt their routines by bringing them along.

You Get More Time To Speak in Court

If you’re filing for a contested divorce, you need to make your argument in court. When you file first, you become the plaintiff. Your spouse becomes the respondent or the defendant. The plaintiff makes the opening argument in front of the judge.

They explain their position and detail what they believe they’re entitled to.

The defendant will have a chance to respond to the plaintiff’s claims, countering them or providing alternative evidence. After they’ve done so, the plaintiff has an opportunity to speak again.

As the person who files first, you’ll have a larger opportunity to present your side of the story. The judge will hear more of what you have to say, and that can significantly impact your case.

What Are the Disadvantages of Filing for Divorce First?

On the other hand, there are a few disadvantages to filing for divorce first. In most cases, the pros are far greater than the cons. It’s a small tradeoff for what can potentially lead to your ideal outcome.

You May Escalate Tensions With Your Spouse

If your spouse is expecting to receive divorce papers, it’s unlikely they’ll be shocked when they receive them. If the divorce papers are a surprise, your spouse may become difficult to communicate with or even combative over the situation.

Whether or not they’re expecting divorce papers, they may become upset when they see what you’ve incorporated into your divorce complaint. They may disagree with the things you’re asking to receive.

You’re Giving Away Your Strategy

Your divorce paperwork will state why you want a divorce and your desired outcome for your marital settlement. This gives your spouse a heads-up. They know what you want and what you’ll say in court. They have time to prepare a counter argument if they don’t agree with your statements or requests.

It’s important to be mindful about your requests. If you ask for a lot, your spouse may be less willing to compromise. They might feel like you’re looking to hurt them or acting out of spite, which can make the negotiation process difficult.

Be mindful and realistic when you’re considering your preferred outcomes for alimony, child support, child custody, and dividing assets.

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You’ll Take on Additional Expenses

The person who files for divorce will have to pay the filing fee. They may also have to pay a professional process server to deliver the papers to their spouse. If you’re experiencing financial hardships, you may be able to request a waiver for your divorce filing fee.

Some states allow sheriffs to serve divorce papers, especially in cases where there is a documented history of domestic violence between partners. They would rather make a conscious choice to send a member of law enforcement in the interest of everyone’s safety.

Can You File for Divorce Together?

Many states allow couples to file a joint petition for divorce. Joint petitions are often less expensive and much easier to navigate. You’ll work to create your uncontested divorce settlement together, and you’ll file the petition together.

No one has to be served with paperwork. You can end your marriage on your own terms, split the fees, and save yourself some stress. Think of it as starting your divorce off on the right foot.

Joint petitions often lead to a divorce being granted quickly. Since you filed together, it shows an act of good faith between spouses. You’re establishing that you’ve already agreed on everything.

The judge will likely have fewer questions or concerns when you’re called into court to be granted your divorce because it will be clear that you both played an equal part in the process.

The Last Word on Filing for Divorce First

Filing for divorce first is the best option for most people, especially when they don’t have the option to file jointly. Although you do risk upsetting your spouse and giving away your strategy, you ultimately have more freedom and a better vantage point when you decide to make the first move.

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