Are there any advantages or disadvantages to who files for the divorce? 21 Answers as of May 02, 2011

Are there any advantages or disadvantages to who files for the divorce?

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Law Office of Joseph A. Katz
Law Office of Joseph A. Katz | Joseph A. Katz
Not really. Not these days.
Answer Applies to: California
Replied: 5/2/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Who files first is usually a matter of personal decision. In many marriages, there is one party who thinks it can be worked out and obviously, that person will not file for divorce until satisfied that he or she has tried everything. In this case, the advantage to filing first is that the case actually gets filed. However, in other cases, both sides want to divorce, it is just a matter of one or the other starting the process.

The party who files first is referred to as the Petitioner. The Petitioner pays the filing fee - generally around $275 in Texas. The Petitioner also has to hire a lawyer first without knowing (though many clients come in hoping or simply guessing) if the matter will be contested or uncontested. The fee for each is significantly different. Additionally, since the Petitioner does not know if the matter will be contested or not, he or she has to make a decision right off the bat to request temporary orders or to forgo that relief in the hopes of keeping things civilized. Finally, the Petitioner has the option of seeking ExParte Orders.

ExParte Orders are Orders from the Court, issued at the onset of the case without hearing or testimony - other than testimony in an affidavit attached to the request - seeking some affirmative and immediate relief, such as possession of the house, possession of the children, etc. Judges do not give these orders lightly, so the Petitioner does not get ExParte Orders just because they asked, there must be some basis, ie: violence, threats, significant fear, prior attempts to snatch the kids, etc. What is enough to get them is very much a matter of discretion to the Court and the facts at hand.

Regardless of the amount of information sufficient to get the orders granted, the Petitioner is the only party that can ask for them. A Respondent - the party who did not file first, and therefore the party that has to respond to the divorce - can ask for Temporary Orders but can never ask for ExParte Orders. ExParte Orders are difficult to get because the Judge has to make a decision based on only one side of the story. ExParte means one party (the Respondent) is not present or represented and their side of the story is not presented. Temporary Orders however, are different in that both sides are heard, or at least given notice an opportunity to be heard. If an ExParte Order is granted, there must be a Temporary Orders Hearing within a specific time period - generally 14 days. Temporary Orders can be issued at any time during the pendency of the proceedings, though the purpose of the Temporary Orders is frustrated if not requested pretty early in the proceedings. Temporary Orders serve to keep everyone on the same sheet of music as so to speak. The Temp Orders instruct the parties on who will have custody until the case is final, who will pay what bills, how the income will be divided and who will have use of the home, etc. Again, either side can request these, but only the Petitioner can request ExParte Orders which do the same thing for just a few days and without the other side having any part or say. Accordingly, if you have sufficient grounds for an exparte order there is a substantial advantage to filing first. Otherwise, if there are not grounds for an ExParte Order or if the ExParte Order is denied, the advantage to filing first is: 1) the Petitioner knows when the case was filed - no waiting and wandering; and 2) the Petitioner gets to go first at the Final Hearing - this means the Petitioner and his/her Attorney get to decide who testifies first and thereby have some control over the pace of the proceedings when the Final Hearing is reached. The disadvantage - if you want to call it that is that Petitioner has to pay the filing fee, start the process without knowing for certain how the Respondent will react, secure service on the Respondent (this is a cost of about $100), and very likely, the Petitioner 's Attorney will do most of the drafting thereby the Petitioner will incur more attorney';s fees. The Respondent has the advantage of knowing, when served, what the Petitioner expects or wants and can decide if the matter will be contested or uncontested based on actual information, not just speculation or wishful thinking. The Respondent, however, may find themselves served at an inopportune time, or in front of friends, co-workers, family, etc. This can be quite embarrassing - though every process server I know and use makes attempts to avoid embarrassing situations by asking the Respondent if there is a private place to talk, or asking them to step outside for a moment if the service is at work or in public. The Respondent can find themselves on the receiving end of an ExParte Order that basically kicks them out of the house, locks them away from the kids, etc. until a formal hearing can be held. Assuming the Petitioner asks for Temporary Orders in the Original Petition, the Respondent does not have a choice of when the temporary hearing will occur (subject to some limitations). And the Respondent only gets to speak first or present evidence first on Motions that the Respondent files that are heard prior to the Final Hearing. But, Respondent's Attorney's fees can be less - the actual cost is very dependent on multiple factors not the least of which is the billing rate. Ultimately, it is a personal decision but I for one believe the benefits of filing first outweigh the expense.
Answer Applies to: Texas
Replied: 4/27/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
There certainly could be strategic advantages, especially as it relates to the status quo order that will be in place once the divorce is filed, so get things going your way before filing. Stay well.
Answer Applies to: Alabama
Replied: 4/26/2011
Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
Sometimes it is important, therefore file first.
Answer Applies to: California
Replied: 4/26/2011
Law Office of John C. Volz
Law Office of John C. Volz | John C. Volz
There are no advantages or disadvantages to who files for divorce first. California is a no fault state therefore the reasons for filing and who files first does not make a difference. The only time where it would be preferential to file first is if the parties are residing in different counties and you wish to have the matter heard in your county.
Answer Applies to: California
Replied: 4/26/2011
    Rhonda R. Werner Schultz, PL
    Rhonda R. Werner Schultz, PL | Rhonda R. Werner Schultz
    In Florida, the primary advantage of filing first for divorce is to go first at trial, if there will be one. Otherwise, the Florida court's do not care who files first.
    Answer Applies to: Wisconsin
    Replied: 4/26/2011
    Julie D. Leckart-Attorney at Law
    Julie D. Leckart-Attorney at Law | Julie D. Leckart
    No, the only disadvantage is that you get to pay the filing fee and costs.
    Answer Applies to: Florida
    Replied: 4/24/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    not really - the filer goes first but the served gets the last word. We handle divorce cases; if you have any other questions let us know.
    Answer Applies to: Connecticut
    Replied: 4/24/2011
    Naziri Hanassab LLP
    Naziri Hanassab LLP | Vahid Naziri
    In California, because it's a no-fault state, it really doesn't matter. The only slight advantage of filing first is where you want your case to be heard. You can file in Los Angeles (Downtown) or can file at a District Court near your home. Some people like filing downtown because there are more resources to get your case heard and completed faster.
    Answer Applies to: California
    Replied: 4/24/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Not in any legal sense other than a slight difference in the amount of the filing fees. In Colorado the first to file pays a filing fee of $230 for the Petition while the other party pays a $116 fee for the Response. Otherwise, the only difference usually affect people's emotional reactions.
    Answer Applies to: Colorado
    Replied: 4/24/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    There are a few advantages one gets by filing and serving the divorce first (note that first-to serve is important in order to get the advantages. Those advantages include the choice of the court in which the case is filed, the ability to interview and rebtain counsel in advance, the ability to plan in advance, the lack of the ticking-clock on a 30-day response time, the lack of the rush to interview and retain counsel in time to meet or beat the 30-day deadline, being referred to as the Petitioner (as opposed to the Respondent) in the case, and getting the first and last arguments at trial.
    Answer Applies to: California
    Replied: 4/24/2011
    Edwin Fahlen Attorney at Law
    Edwin Fahlen Attorney at Law | Edwin Fahlen
    The main advantage to being the petitioner is in some cases is the ability to obtain orders to freeze economic accounts when the other spouse may take and hide them. Other than for that purpose there is not any difference in the case what your title is, Petitioner or Respondent.
    Answer Applies to: California
    Replied: 4/24/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    There are some advantages to filing first. You may have a bit more control over how fast the divorce lawsuit moves through the courts, and you will get first chance to make your claims with the court. I would like to discuss this with you in detail, give you an idea of the process.
    Answer Applies to: New Jersey
    Replied: 4/24/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    If it's a no fault divorce, the answer is no.
    Answer Applies to: Virginia
    Replied: 4/24/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    While many attorneys would say there are no advantages to filing first, I always advise my clients to file first because that way they get to present their case first before the Judge at trial, if a trial is needed. Beyond that, if you start an action, you get the choice to finish it. If you are a Defendant, unless you counterclaim, the Plaintiff (the one who starts the action) can simply discontinue if things are not going well for them and that could leave the Defendant without much recourse except to start the action all over again which can be time consuming. I also don't like my client becoming "the Defendant" just because the other person started the action. It just leaves anyone reviewing things with a bad impression at first and it's often hard to overcome a first impression. I trust that clarifies the issue.
    Answer Applies to: New York
    Replied: 4/24/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    I always prefer to be the petitioner but thevadvantages are small. Often it matters socially or psychologically more than legally. I wouldn't worry about it.
    Answer Applies to: Washington
    Replied: 4/24/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    There are no legal advantages to filing for divorce first. There may be a strategic advantage of being able to prepare documents and other in advance of filing , or, where the parties reside in two different counties, choosing the county where the case is filed.
    Answer Applies to: Minnesota
    Replied: 4/24/2011
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