Does It Matter Who Files for Divorce First?

There’s more to contemplating divorce than planning a new life without your current spouse. You’re looking at some tough times ahead, financially and emotionally. You sure don’t want to make it any harder than it’s going to be, but what if you could make it easier? Does it matter which spouse files for divorce first?

The truth is, filing first will not change what the law gives you. However, it can improve your footing on the way towards your final divorce decree. That starts with understanding how marital property actually gets divided.

Here is what filing first actually does and what it doesn’t.

The Legal Reality of Filing for Divorce First

Filing first brings no legal advantage in the outcome. It only starts the process. There’s no bonus for seizing the initiative or beating your spouse to the filing clerk’s office; no thumb on the scale for being the first to recognize the marriage isn’t working.

Filing first only makes you the petitioner in the process and your spouse the respondent. The same laws apply to each of you in the same way. This holds across all no-fault divorces, which is how most of them proceed.

When the time comes to divide what you built and acquired together, the court follows your state’s rules. Some states favor equitable distribution (where “fair” does not necessarily mean an even split) while others use the community property standard.

Filing first also has no bearing on child custody or parenting agreements.

Judges decide wholly in the best interests of the child. Let go of any notion that being the first to file the divorce summons and complaint locks in a better outcome.

It doesn’t.

Strategic Advantages for the Petitioner

Filing first does bring advantages, but not the kind that show up in the final judgment. Rather, it gives the petitioner an opportunity to set up the machinery of the process, such as:

• Choosing where to file: You can file for divorce anywhere one or both spouses meet legal residency requirements. This can allow the petitioner to pick the most convenient (or favorable) court. This can matter if your spouse lives in another city or state.
• Controlling the timing: Instead of reacting, you can have your finances and important documents in order before the process even starts.
• Requesting temporary orders: You can establish a status quo in your favor by setting out who gets temporary custody, who is responsible for child support (for now), and who gets to stay in the home.
• Securing financial protections: In some states, the first filing puts in automatic temporary restraining orders that freeze marital assets and prevent either spouse from hiding assets or draining accounts.
• Framing the petition: One of the advantages of filing for divorce first is that you get to outline key details of your marriage, children, and property so the court knows what you want to resolve.

Filing first doesn’t guarantee everything you want in a divorce, but it keeps you from starting flat-footed. That in itself is a sound divorce petition strategy.

Potential Drawbacks of Being the First to File

It’s not all upside for the spouse who files first. It can be a strategy, sure, but some strategies backfire. Here are a few ways being the petitioner can become a disadvantage:

• You tip your hand: Your spouse sees your opening position, your first moves, before you see theirs.
• You pay the initial court fees: Filing first isn’t free.
• You and your family law attorney might have to present first at trial: Not all divorces proceed to a trial, and not all states make the petitioner present first, but many do. This can help or hurt depending on the disposition of the judge or the circumstances of the case.
• You’re the “aggressor”: Filing for divorce first is an open declaration against your spouse. This can harden a dispute that a quieter conversation might have softened.

None of this means that being passive is better. Filing first is a choice that comes with trade-offs. It’s better to weigh those against the possible advantages.

How to Prepare Before Filing Your Petition

Preparation is the biggest advantage to filing first, especially if you make it count.

You have a chance to gather the full financial picture of the marriage before you file. Getting prepared means collecting all the important documents, such as bank statements, tax returns, property deeds, retirement accounts, bills, and debt statements, before they suddenly and mysteriously become hard to find.

You can also get clarity about your state’s residency rules and divorce filing process so that you’re not caught off guard after you file. You have time to consider exactly what you want for custody and support, which can give you a stronger stance in negotiations.

You can even weigh legal separation vs divorce to see which is the best option for your situation. And finally, you can talk to someone who considers all these issues for a living. Our firm helps people across the country make this decision every day.

When It’s Time for a Conversation

Being the first to file for divorce won’t hand you everything you want. However, it can get you a head start on being ready. In a divorce, being ready is stronger than being first.

If you’re not sure what to do, reach out to Davis & Associates.  We can clarify what going first would actually mean in your situation in the state where you live.