Is it better to be the first person to file for divorce in California? 14 Answers as of March 10, 2011

Is there an advantage to being the first to file?

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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: 3/10/2011
Goodman, Dicus, and Teinert, LLP
Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
Despite some misconceptions there is no tactical advantage to filing the petition for divorce. Whether you are filing or responding the fees are the same and the court will not hold a bias towards a party no matter what his or her title is on the matter.
Answer Applies to: California
Replied: 3/3/2011
Bartholomew & Wasznicky LLP
Bartholomew & Wasznicky LLP | Hal D. Bartholomew
Legally it makes no difference on who is the first person to file for divorce in California. The filing fee for the petition or the response is identical. In the past the fees were higher for the petition. Sometimes an individual does not want to be the petitioner in a dissolution action because it somehow implied that this individual was the person that "wanted" the divorce. The courts know that just because one person is the petitioner that does not imply about who "wanted" the divorce or even who was the catalyst for the breakup of the marriage. The grounds for filing are irreconcilable differences. It is the same basis whether you file first as petitioner or second as the respondent. When a person feels strongly about this emotional issue, one option is to file for a Legal Separation as the petitioner. This forces the other party, if they so choose, to convert the legal separation into a dissolution action by simply checking a box on the response asking for a change to a dissolution marriage.

Again, legally, there is no significance as to who is the first to file for a divorce in California. If you need to seek the court's assistance in any way, it does require a legal action to be filed before you can ask for any relief from the court.
Answer Applies to: California
Replied: 2/18/2011
Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
Filing first can be an advantage regarding custody and visitation.
Answer Applies to: California
Replied: 2/18/2011
Edwin Fahlen Attorney at Law
Edwin Fahlen Attorney at Law | Edwin Fahlen
It does not matter who files for the divorce. There is no advantage to being the petitioner as opposed to the respondent. Those are just identifiers to be used throughout the case. Also, the filing fees are the same.
Answer Applies to: California
Replied: 2/18/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    The only advantage is that the person responding to the Petition only has 30 days to file their response before a default can be taken. Otherwise there is no tactical advantage.
    Answer Applies to: California
    Replied: 2/18/2011
    Diana K. Zilko, Attorney at Law
    Diana K. Zilko, Attorney at Law | Diana K. Zilko
    There is a perceived advantage to filing first, however, practically speaking, there really isn't. The Petition sets forth certain "facts" which then can be contested in the Response. The only true advantage to filing first is if you believe the other party will not respond. You can then seek to resolve the case via default. If you have any further questions, please let me know.
    Answer Applies to: California
    Replied: 2/17/2011
    Pisarra and Grist
    Pisarra and Grist | David T. Pisarra
    There is no advantage to filing first in California for a divorce. The only time it is helpful is if a domestic violence restraining order is involved, then being the first to court is VERY advantageous.

    For more information you can read my books, A MAN'S GUIDE TO CHILD CUSTODY, A MAN'S GUIDE TO DOMESTIC VIOLENCE, and A MAN'S GUIDE TO DIVORCE STRATEGY.
    Answer Applies to: California
    Replied: 2/17/2011
    Naziri Hanassab LLP
    Naziri Hanassab LLP | Vahid Naziri
    Not really, just for jurisdictional purposes.
    Answer Applies to: California
    Replied: 2/17/2011
    Saddleback Law Center
    Saddleback Law Center | Paris Kalor
    No, not at all.
    Answer Applies to: California
    Replied: 2/17/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    No. none whatsoever. There is no advantage or disadvantage either way.
    Answer Applies to: California
    Replied: 2/17/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    There can be many advantages to filing first.
    Answer Applies to: California
    Replied: 2/17/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    Others may disagree but I think there is no advantage to filing first.
    Answer Applies to: California
    Replied: 2/17/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    There are a few advantagesthat the first to file gets.

    If you file and serve first, your choice of Court can trump your spouse's choice of Court (venue), assuming that there is a choice that can be made. For instance, in Los Angeles, a party can file in his/her local branch court, or in the central district. The first to file alone isn't determinative. The first to serve is determinative.

    The first to file is generally the first party prepared to go forward with the case. The other party has 30 days to retain counsel and file a Response.

    The first to file gets the first and last argument at trial. The other party gets the middle argument at trial.
    Answer Applies to: California
    Replied: 2/17/2011
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