Is it advantageous for a spouse to be the one to files the petition for divorce? 31 Answers as of June 25, 2013

I heard that legally it would be in my favor to file before he does, is that true? If it is true, what advantage does it hold? As far as I know there has been no infidelity and he wants an amiable agreement to move on because he feels that we are incompatible.

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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 $300 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 - and keep in mind, if this happens, someone has made an impression on the Judge already so while the law assumes the Respondent will not be prejudiced by ExParte Orders, the fact is, the Respondent has to climb uphill if they are granted. Similarly, if 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: 9/16/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
There aren't significant advantages to being the first to file, but it is not the first to file that matters. It is the first to serve. Being first gives a party the choice of court (if there is a choice of two courts), the ability to prepare in advance vs. the need to find a lawyer and file a response within 30 days of service, and the first and last argument at trial.
Answer Applies to: California
Replied: 9/14/2011
The Law Office of Erin Farley
The Law Office of Erin Farley | Erin Farley
There is no legal relevance or advantage to filing first. If your husband is open to an amicable settlement, and he is a reasonable man, then my advice is to continue to work together toward a mutually agreeable outcome.
Answer Applies to: California
Replied: 9/14/2011
Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
Yes, the first one to file get to present their case first in Court and therefore can make the first impression on the Court.
Answer Applies to: Alabama
Replied: 9/14/2011
Glenn E. Tanner
Glenn E. Tanner | Glenn E. Tanner
In Washington, the Petitioner will have the primacy and recency advantage at times but the advantage is debatable and negligible.
Answer Applies to: Washington
Replied: 9/14/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    There is not much of an advantage in Wisconsin for being the first to file. Sounds like you both may be able to do a joint filing, and then perhaps explore mediation as a way to proceed through your divorce.
    Answer Applies to: Wisconsin
    Replied: 9/14/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    In the cases I have handled, I have not seen an advantage for the one who filed for divorce first.
    Answer Applies to: Georgia
    Replied: 6/24/2013
    Law Offices of Paul A. Eads, A.P.C.
    Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
    The Petitioner in a cause of action sets the stage for what relief they want. They are also the first and last heard at time of trial.
    Answer Applies to: California
    Replied: 9/14/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    The only advantage to filing first is so that you can choose the courthouse you wish to file in. There are no other advantages. California is a no fault state so issues such as infidelity or other reasons are not relevant in a divorce.
    Answer Applies to: California
    Replied: 9/14/2011
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    There is no advantage legally to who files a Divorce Complaint (Plaintiff/Petiitoner) and who is the Respondent/Defendant. There may be a psychological benefit to claiming to be "the wronged one" or "the one who wanted to stay married."
    Answer Applies to: Pennsylvania
    Replied: 9/14/2011
    Reza Athari & Associates, PLLC | Riana Durrett
    This is a matter of opinion, but most judges would tell you that it does not matter whether you are the plaintiff or defendant. I find it hard to believe that it has no subliminal impact, however small that would be. If the parties file a joint petition for a summary decree of divorce then it is most likely that the court will simply order what the parties have agreed to and in that case it would not matter who was the plaintiff or defendant. Even parties that do a joint petition can benefit from the advice of counsel because an experienced family law attorney can provide advice on property division. My office provides free consultations on such matters.
    Answer Applies to: Nevada
    Replied: 9/14/2011
    Michael D. Fluke, P.A.
    Michael D. Fluke, P.A. | Michael D. Fluke
    Opinions differ, even amongst attorneys. My opinion is it makes no difference who files first. On the other hand, you may not want to wait around until the other side files. There can be many disadvantages to waiting. I suggest you consult an experienced Family Law attorney to discuss your case in greater detail and learn all of your rights and options. Good luck.
    Answer Applies to: Florida
    Replied: 9/14/2011
    Gregory T. Buckley, Attorney at Law
    Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
    Generally, there is no advantage to being the party to file for divorce. A potential disadvantage is that you have to come up with the $408 filing fee, as well as summons and service fees.
    Answer Applies to: Florida
    Replied: 9/14/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    If you are trying to work out an amicable or an agreed divorce, then, who files first, should have no impact upon the case. If you have a contesting divorce with children, and if the issues relating to children are going to be seriously fought, then, there may be some advantage to being the first to file. Being the first to file allows you, to a certain extent, to set the pace of the early portions of the case. That advantage tends to go away later in the case.
    Answer Applies to: Washington
    Replied: 9/14/2011
    Law Office of Daniel B. Rubanowitz, APC
    Law Office of Daniel B. Rubanowitz, APC | Daniel B. Rubanowitz
    There are a few advantages to filing first for divorce which include the following: 1) You establish the timing of getting the case started; 2) If you live in an area (i.e., jurisdiction) where more than one Courthouse can hear your case, you can "forum shop" to select the Court if you are the party who files and serves the appropriate documents first; and 3) At the time of trial, the party who files and serves first (i.e., the Petitioner) gets to put on his/her case first and make the last closing argument. Traditionally, lawyers and parties believed that if you were able to put your case on first, then the judicial officer might be persuaded in your favor before the other party even gets started. However, many family law attorneys believe that there is no longer an advantage to going first because the judicial officers hearing cases in Family Court are very well trained and generally do not make decisions until after all of the evidence is presented.
    Answer Applies to: California
    Replied: 9/14/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    There are some advantages to being the one to file, including the choice of venue, and framing the issues in the case.
    Answer Applies to: Georgia
    Replied: 9/14/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    In the event you do a simple, uncontested divorce, then it wouldn't generally matter who files or when. However, you can discuss with your divorce lawyer the options if you decide to file contested. Good luck.
    Answer Applies to: Georgia
    Replied: 9/14/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    There is no substantive advantage to being the Plaintiff as opposed to the Defendant.
    Answer Applies to: Georgia
    Replied: 9/14/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    There is no advantage or disadvantage regarding who is the petitioner or respondent. Best to only get divorce/legal advice from an experienced family law lawyer.
    Answer Applies to: California
    Replied: 9/14/2011
    Linda C. Garrett Law
    Linda C. Garrett Law | Linda Garrett
    California answer. There is no advantage or disadvantage from you or your spouse to file first. For the majority of couples, the legal basis is "irreconcilable differences." All this means, in plain English, that you no longer want to be married. The California courts are only concerned about the parties equally dividing the debts/assets/liabilities or the parties reaching a settlement that creates a win-win situation for the parties. Good luck.
    Answer Applies to: California
    Replied: 9/14/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    You would get to go first at a trial.
    Answer Applies to: Connecticut
    Replied: 6/25/2013
    The Coyle Law Office
    The Coyle Law Office | T. Andrew Coyle
    That is a strategy that some attorneys follow. The advantage is really in having the control of starting the proceedings and knowing that the ball is now rolling (as opposed to waiting for the other side to file first when they feel ready). Also, if you wait for the other side to file first - they can later withdraw the petition which stops the proceedings. So, even if you don't file first, it is often prudent to file your own cross-petition to preserve your rights within the proceeding.
    Answer Applies to: Illinois
    Replied: 9/14/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    There is normally no particular advantage to one spouse suing before another in an uncontested divorce case, but there are too many factors to consider to list here. Financial considerations such as use of the family home and access to credit cards and bank accounts may make it advantageous for one party to move quickly to get court orders. You should consult an attorney about the specific facts of your case.
    Answer Applies to: Louisiana
    Replied: 9/14/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    If it is clear you are no longer willing to remain in the marriage, the prudent thing to do is to file a petition for divorce and have the document served on your husband. Once you file the petition, orders are issued to protect property management and insurance. Once your husband is served, he is obligated to comply with theose orders. The orders are referred to as automatic temporary restraining orders (ATRO's).
    Answer Applies to: California
    Replied: 9/14/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    There is no advantage to being first to file. Financially as to the court filing fees, in Color the cheapest way is for the spouses to file as co-petitioners where there is only a single filing fee. Otherwise, the first to file pays the $230 filing fee and the second pays a $116 filing fee.
    Answer Applies to: Colorado
    Replied: 9/14/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    There can be advantages to filing first in a divorce proceeding. These can include picking the court where the case is filed, timing, ability to obtain immediate orders, and avoiding delay. Usually, it does not impact your rights to support or property rights. But if you are in separate states, then being able to pick a court could have a real big financial impact. But for couples living in the same state, generally, the advantages to being the first to file are not significant. Of course, you should always consult an attorney regarding your particular circumstances.
    Answer Applies to: California
    Replied: 9/14/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    In California, there is no advantage to filing first, provided that both parties are in the same county. If they are in different counties, then the advantage would be which county handles the case (though the laws remain the same).
    Answer Applies to: California
    Replied: 9/14/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    In a divorce you get what you get. A divorce can be based on "irreconcilable differences," without an explanation of what the differences are.
    Answer Applies to: New Jersey
    Replied: 9/14/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    Yes. In a contested case, the first to file gets to present her case first and last.
    Answer Applies to: Oregon
    Replied: 9/14/2011
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