Does it Matter Who Files for Divorce First?
Sep 12
6 min read
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Divorce is never easy, and the decision of who files first may seem like a minor detail, but it can carry both legal and emotional weight.
Many people wonder whether it matters who initiates the process, and the answer is sometimes yes. The person who files for divorce first may gain strategic advantages, but there are also potential drawbacks.
We’ll explore whether it’s better to file first, the pros and cons of doing so, what to do if your spouse files before you, and whether both parties can file at the same time.
Table of contents
Is it better to file for divorce first? The advantages
Legally, one spouse’s ability to file first does not change the outcome of the divorce. Courts don’t favor the petitioner (the spouse who files) over the respondent (the spouse who responds to the divorce complaint).
From a strategic, emotional, and financial standpoint, however, being the first to file may offer some benefits, depending on your specific situation.
If you’re considering divorcing your spouse and have the ability to plan ahead, there are a few key reasons why initiating the process may work in your favor.
Choice of jurisdiction
One of the most significant advantages of filing for divorce first is the ability to choose the jurisdiction in which the case will be heard. This is particularly important if you and your spouse are now living in different counties or states.
This is because each state has different divorce laws regarding:
Property division
Spousal support
Custody arrangements
Residency requirements
By filing for divorce first, you may be able to opt for a more convenient or beneficial jurisdiction, potentially leading to a more advantageous outcome. As an example, Texas currently awards minimal spousal maintenance, however, California often grants large spousal maintenance awards.
Control and preparation
Being the first to file for divorce gives you control over the timing and allows you to prepare before the process officially begins, and, indeed, before your spouse may be aware of your intentions.
In filing first, you can gather and organize financial and legal documents, plan your next steps in regard to housing, finances, and childcare, and consult with an attorney ahead of time. But it’s important to know, when you do file, evidence may become more difficult to find.
When you file first, you know what’s coming. You’re not caught off guard and can approach the process strategically, rather than reactively.
Preventing asset hiding
Filing first helps legally prevent your spouse from hiding or moving assets.
When a divorce is first filed, courts often issue something called an automatic temporary restraining order (or ATRO), which prohibits both parties from transferring, hiding, or selling marital assets.
If you suspect your spouse may try to conceal or drain finances, filing first can safeguard your interests, however, if your spouse is dishonest, you may need to ask the court to freeze accounts.
Time to file protective orders
If your spouse has a history of domestic violence, harassment, or any other threatening behavior, filing first gives you the opportunity to request a restraining or protective order immediately. This may be done in the same court by the same judge, or in a different court by a different judge. But filing this before serving the divorce papers can be helpful in some situations. It’s important to remember that an order of protection is just a piece of paper and it is important to keep yourself safe.
The order of protection/injunction can be critical for your safety and the safety of your children.
The disadvantages of filing for divorce first
While filing first can provide advantages, it’s not without its downsides. The following are some of the potential disadvantages to filing first that you should consider before making the first move.
Revealing your strategy
When you file for divorce first, you are typically required to lay out your demands in the divorce petition and you are usually required to present your case first at trial
This includes your preferred outcomes for custody, property and asset division, and spousal support. In filing first, you are revealing your hand, giving your spouse a chance to tailor their response to your requests, potentially making the process more adversarial or causing you to lose the upper hand.
Additional costs associated with being the first to file
There is a definite financial downside to being the one to file for divorce first, in that the petitioner usually pays the initial filing fees. These depend on your county and state, but they can range from $100 to $500 or more.
Further, you may incur legal fees earlier than your spouse as you seek legal counsel to help prepare for filing. There are also costs involved with the act of serving the divorce petition to your spouse, depending on which method you use.
You can find out more about the costs associated with filing for divorce in our guide here.
The emotional toll
Filing for divorce can be emotionally taxing, especially if the decision to end the marriage wasn’t mutual.
The first person to file often bears the emotional weight of initiating the end of the relationship, which may feel like a heavy burden. If your spouse feels blindsided by the divorce, there may be increased tension in your relationship.
If you and your spouse have children, being the one to initiate the divorce may come with feelings of letting your kids down.
Your children deserve happy parents. If you and your spouse can live better lives apart, this will be something your kids come to understand in time, but it can be a difficult weight to shoulder in the early stages.
What to do if your spouse files for divorce first
If your spouse files for divorce first, that’s okay. As we have covered, being the respondent does not put you at a legal disadvantage in court.
If you have been served divorce papers, here’s what to do:
Read the divorce petition carefully: Make note of any deadlines, specific requests, and court dates.
File your response on time: Most states require you to respond within 20 to 30 days. Failing to respond may result in a default judgment.
Gather financial and legal documents: Just as if you were filing first, you’ll need to prepare your case.
Consider mediation or negotiation: Filing first doesn’t mean your spouse wants a fight. If possible, you should try to resolve any issues in the divorce petition collaboratively and amicably.
Most importantly, you should take care of yourself. Whether you expected your spouse to file for divorce or not, reaching out to trusted friends and family members is vital for ensuring you feel supported and heard during the process.
Can you file for divorce at the same time?
Technically, both spouses cannot file for divorce at the same time, as the court only accepts one petition per couple. However, if you both file close in time, in the same jurisdiction, the court will usually accept the one that was filed first. If they are in different jurisdictions, the court may speak with the other judge to determine where the case should be heard.
If both spouses want to avoid conflict and agree that divorce is necessary, you can work together to file an uncontested divorce. This may be referred to as a joint petition in some states.
In this situation, as both parties agree on all issues and the paperwork is filed together, the process should be quicker, less expensive, and more collaborative.
This approach minimizes the adversarial nature of divorce and helps couples move forward amicably.
Conclusion
So, does it matter who files for divorce first? It depends on your circumstances. Filing first can offer strategic benefits, such as controlling jurisdiction, organizing assets, and taking proactive legal steps, but it also comes with financial and emotional considerations.
Ultimately, the most important factor isn’t who files first, but how well each spouse understands their rights, gathers information, and approaches the process.
Whether you’re the one initiating the divorce or the one responding to the petition, making use of the Splitup app can help you stay informed, calm, and organized, making a world of difference.
