Is there an advantage to file for divorce first? 22 Answers as of January 07, 2011

I am presently separated and living out of our house. She asked me to leave so I did. There was no major reason for separation just differences about adult children and lack of affection from her for a year or so. Her son moved back in and is stealing thousands of dollars from us was the last issue that caused friction for us. Is it better to live in your house (owned) or move out before filing? Thank you.

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Saddleback Law Center
Saddleback Law Center | Paris Kalor
It is always better to remain in the house, if there are no domestic violence issues.
Answer Applies to: California
Replied: 1/7/2011
Law Office of Tim W. Avery
Law Office of Tim W. Avery | Tim W. Avery
There is no significant advantage to being the first to file. Sometimes, one initial advantage to the person who files first is that he or she has adequate opportunity to consult with various attorneys before choosing one and prepared for the financial cost of filing for a divorce. Other than that, no real advantage of filing first.
Answer Applies to: Texas
Replied: 1/6/2011
441 Legal Group, Inc.
441 Legal Group, Inc. | Gareth H. Bullock
Doesn't really make a difference in your case as far as the house. As far as filing first no great benefit other than getting it done. Cost less to file a counter-petition
Answer Applies to: Florida
Replied: 1/5/2011
John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
Neither the question of who files first or who moves out of the home first has any direct legal significance or influence on the ultimate outcome if a judge has to rule on any disagreements about the terms of the final divorce. The significance of who moves out first depends on the nature of your relationship with your wife. If you trust each other sufficiently to believe that it isn't necessary to immediately remove furnishings or other items from the home to protect against spiteful or malicious conduct by the other, the only factor to be considered is what the longer term plan for the house will be. The ideal situation is that you and your wife conduct the process of physically separating and pursuing the legal proceedings in an amicable, organized, planned and orderly fashion, so if that is possible it really isn't important whether you file before or after one person moves out. If a bitter and hostile fight over everything is likely, then perhaps it is better to stay in the home until a judge can rule and set out an orderly plan for the physical separation.
Answer Applies to: Colorado
Replied: 1/5/2011
Law firm of Cody & Gonillo, LLP
Law firm of Cody & Gonillo, LLP | Christopher M. Cody
The answer to your question regarding if and when to move out of the marital residence depends on all of the facts and circumstances. I know that may not help you, but it's a longer discussion than I can address in this short answer forum. There is no legal advantage in CT to being the first to file. It simply permits you to be the one to determine when the dissolution action will actually begin. It prevent possible stalling by the other party. Feel free to contact Attorney Christine Gonillo for a free consultation regarding a dissolution of marriage.
Answer Applies to: Connecticut
Replied: 1/5/2011
    Maclean Chung Law Firm
    Maclean Chung Law Firm | G. Thomas MacLean Jr.
    An advantage for filing for divorce first is choice of which court will hear the case, and gives you initial control over the direction of the case. Depending on where you are located, having your case heard in one courthouse over another can be a big advantage. Starting the divorce process also can open up remedies toward protecting community assets.
    Answer Applies to: California
    Replied: 1/5/2011
    Harris Law Firm
    Harris Law Firm | Jennifer C. Robins
    In the State of Oregon, there is really no advantage to filing for dissolution first. In the petition for dissolution, you may request that the primary residence (your home) be "given" to you, meaning you would have exclusive use of the residence. This issue may not be something the Judge would make a decision on right away, as that is considered an issue of property division.
    Answer Applies to: Oregon
    Replied: 1/5/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Since this is an action to dissolve a marriage, there is no legal significance in being the plaintiff or the defendant. Practically speaking, if there is a trial the plaintiff gets to tell his or her story first, but the defendant gets the last word. As far as living arrangements it is not important as long as the households are both supported financially. It sounds like you have many questions; if you would like to sit down for a free initial consultation, please contact me or the office to set up an appointment. Good luck.
    Answer Applies to: Connecticut
    Replied: 1/5/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    Usually moving out is a bad idea, simply due to the cost and inconvenience. Also if there were minor children, I would want you to make sure you were getting plenty of time/visitation with them. IN your situation, I'd say it is up to you. Make sure you have take things out of the house that are important to you. Between an ex-wife and a stealing child, you might not have anything left in the home. If you have decided to divorce, than you should go ahead and file, but there is no significant advantage to being the first to file. Call an attorney for a consultation on your specific facts before you make any be decisions.
    Answer Applies to: California
    Replied: 1/5/2011
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    Sometimes it makes a difference, but if no minor children, then you are ok. Go ahead and file the divorce, use a family law attorney to protect your rights to the assets.
    Answer Applies to: California
    Replied: 1/5/2011
    Steven D. Keist, Attorney at Law
    Steven D. Keist, Attorney at Law | Steven D. Keist
    There is no advantage to filing first. There is no advantage or disadvantage from moving out of your residence. If you have equity in same you are entitled to it whether you live there during the proceedings or not.
    Answer Applies to: Arizona
    Replied: 1/5/2011
    Froerer and Miles, P.C.
    Froerer and Miles, P.C. | Robert L Froerer
    In my opinion, from an asset/equity position, it doesn't matter. You retain your ownership interest (legal and/or equitable) whether you're in or out of the house. If you want to keep your house and buy her out, it might make more sense for you to be in it, though not necessary. Also, to protect and maintain it (if you felt she and/or her son might not keep it up, or might even "trash" it, would be a reason to want to be in it while the case is resolved.

    If you would like to discuss things further, feel free to call for a free telephone consultation.
    Answer Applies to: Utah
    Replied: 1/5/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Living separate and apart from his or her spouse will normally work better for the one who files.
    Answer Applies to: Virginia
    Replied: 1/5/2011
    The Law Office of David J. Reed, LLC
    The Law Office of David J. Reed, LLC | David J. Reed
    The advantage to filing first is that you are in the control of the timeframes within accompanying the divorce. There is no significant advantage to being the plaintiff in the matter, the facts are what they are, however, it is always advantageous to have control of the time frames.
    Answer Applies to: Nebraska
    Replied: 1/5/2011
    Theiler & Mourtos Attorneys at Law
    Theiler & Mourtos Attorneys at Law | Devan J. Theiler, Esq.
    As I understand it, you have two primary questions: (1) is there an advantage to remaining in the marital home before or while doing through a divorce and (2) is there an advantage to filing for divorce first (before your spouse). The answer to both of those questions is no. Absent unusual circumstances, you will be entitled to one half of the equity in the marital home at the time of the divorce whether you are presently living there or not. And because New Jersey is a no fault state, there is no advantage to filing for divorce before she does. Whether you are the "plaintiff" or the "defendant" in the matter does not change what you are legally entitled to. I strongly recommend that you speak with an attorney licensed to practice in the state where you reside so that you can understand how best to protect your rights. Please note that the answers above are based on the law in the State of New Jersey and could be very different depending on what state you live in.
    Answer Applies to: New Jersey
    Replied: 1/5/2011
    The Connelly Firm P.C.
    The Connelly Firm P.C. | Thomas Connelly
    If the house is a marital asset, I always recommend staying put. Also, I believe that filing first is advantageous. Neither of these are "game changers" however.
    Answer Applies to: Pennsylvania
    Replied: 1/5/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    You ask two questions: 1) Is there an advantage to file first? and 2) Is it better for you to stay in the house with your wife or move out before filing?

    There are some advantages in filing first. 1) You get to plan in advance, rather than having to scramble to find a lawyer to meet with you to file a Response within 30 days of getting served. 2) You get to choose the Court. If your spouse moved to another county, your spouse could file (after three months residence there) in that county. 3) As the Petitioner (the party who filed first), you get the first and last argument at trial. Just be sure that you serve first, because the first case served is the operative case.
    Answer Applies to: California
    Replied: 1/4/2011
    Diana K. Zilko, Attorney at Law
    Diana K. Zilko, Attorney at Law | Diana K. Zilko
    Typically, it is best to stay in the house if you can, especially if you plan on trying to keep the house as part of the divorce settlement. However, if you are out of the house, then be sure to establish that your spouse has exclusive use and control, and make sure they are paying the mortgage and other house-related expenses. If you have any further questions, please let me know.
    Answer Applies to: California
    Replied: 1/4/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    There is no advantage or disadvantage whatsoever to being the "petitioner," i.e., the one who files for divorce.

    As for your question about whether it is better to live in or out of the house when filing for divorce, the answer is "it depends." For instance, is there an issue of custody of minor children? If not, then no, it doesn't really matter. If you move out voluntarily, your spouse may obtain an "exclusive possession" order. But, that does not affect your ownership rights in the house.

    I would suggest you call a local family law lawyer and discuss your case in more detail so you can properly plan your divorce process.
    Answer Applies to: California
    Replied: 1/4/2011
    DiManna Law Office, LLC.
    DiManna Law Office, LLC. | Dawn DiManna
    There is no advantage to filing first, whoever files first presents their side of the case first. If you are already out of the house then it won't matter when you file unless you plan on moving back in. If you want to remain in the home then you would file before you leave and request orders from the court for you to remain in the house.
    Answer Applies to: New Hampshire
    Replied: 1/4/2011
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