Does It Matter Who Files for Divorce First?

The first step to divorce is filing a petition for dissolution of marriage by one or both spouses. According to the current legislation, either party can submit a petition for divorce to the court provided they meet residency requirements.

There is no unequivocal opinion about who should file for divorce first. However, initiating legal proceedings can have its advantages and disadvantages. Although filing for divorce first will not affect the outcome of marriage dissolution, distribution of finances, or the resolution of child-related issues in most cases, it can help greatly in determining a strategy and preparing for the process.

This article will give you a better understanding of the impact that starting a divorce as a petitioner may have on court procedure, asset division, and child custody orders. We will answer the question, “Does it matter who files for divorce first?” and identify the main strengths and weaknesses of the decision to submit papers to the court clerk’s office first.

The Advantages of Filing for Divorce First

The answer to the question, “If I file for divorce first, do I get custody for sure?” is most likely to be negative because resolving issues related to child custody and maintenance depends on case-specific circumstances rather than which spouse will submit paperwork to the court first.

However, being the initiator of the process, you will influence some features of the procedure, which may be a significant advantage for you. What happens when you file for divorce first? You will become the plaintiff or petitioner in the case. It means that you will submit a petition, and your spouse will need to respond to it.

Here are the main advantages of filing for divorce first:

  1. You will be able to control the timeframes of the process better. To get a divorce, you will need to go through several stages, including completing the waiting period, scheduling a court hearing, etc. If you file first, it becomes easier for you to navigate the process, knowing exactly when the trial will take place and what the potential marriage dissolution date can be. Considering this information, you can adjust your work schedule, vacation, etc.
  2. You can choose the place to file for divorce. In most cases, future ex-spouses live in the same county, where they file for dissolution of marriage. If you live separately and in different counties, you can choose the jurisdiction based on your needs or wishes when starting a divorce. It will help a lot if you have children or another reason why you cannot spend time on long trips. If you still wonder, “Should I file for divorce first?”, this advantage is enough for some people to be the divorce process initiators.
  3. You will be able to choose a strategy. When submitting a petition, you state your requests to the court, indicating your vision for the future property division or child custody and support. In addition, according to the specifics of court hearings, being a plaintiff gives you the right to speak first to explain and argue your appeals in court.
  4. You have time to prepare better. After receiving the petition and summons, the defendant has a limited period to respond. Petitioners do not have such restrictions and can take their time carefully considering their further actions.
  5. You can prevent the financial manipulation of the other party. As long as you are married and the divorce petition has not been filed, your spouse can dispose of joint assets against you. By initiating a divorce unexpectedly, you can prevent the illegal actions of the other party.
  6. You can file temporary orders along with your petition. If you have a difficult financial situation, and your partner refuses to back you during the marriage, you can file for divorce and ask the court to assign temporary maintenance for you and your children, if any, from the other party. If you are thinking about the question, “If my husband wants a divorce, should I file first?”, it is reasonable to start the process if you need support. In addition to alimony, temporary orders can also address issues of child custody or the use of joint property, such as a house or a car, during the divorce.
  7. You will be able to avoid psychological pressure. If the other party threatens to leave you or initiate a divorce, you can get ahead of them by filing first. If you are sure that your marriage cannot be saved, but your spouse insists on reconciliation, which causes you moral suffering, you can get rid of it by submitting the paperwork for marriage dissolution immediately.

It is impossible to answer, “Is it better to file for divorce first?” not knowing the circumstances of the case. However, the advantages of being the first to file papers with the clerk’s office can greatly affect the course of the legal process.

The Disadvantages of Filing for Divorce First

No one can advise on who should file for divorce in your case. Before initiating the process, you should be aware of the strengths and weaknesses of such a decision.

The following disadvantages of filing for divorce first are among the most common in the vast majority of cases:

  1. The risk of increasing conflict and stress levels. If your spouse did not expect to receive a divorce petition and a summons, this news may cause anger or even aggression. Your future ex-spouse may accuse you of ruining your marriage and deliberately disagree on matters of property division or child custody, further complicating or prolonging the process.
  2. Negative impact on the plaintiff’s emotional state. If you file for divorce first, you may think you are doing something wrong because of the disapproval of this decision by friends or close relatives. Most often, people perceive the submission of divorce papers to the court first with condemnation, which disturbs the balance and moral condition of the plaintiff.
  3. Unexpected consequences of revealing the strategy first. You can never be sure what the defendant’s actions will be after they receive the paperwork. Disclosing your requests to the court first often becomes the cause of unforeseen counterarguments from the other party. You may not be prepared for allegations or objections to the information stated in the petition.
  4. Higher expenses on court fees for divorce filing. In most cases, the petitioner pays the filing fee when submitting divorce papers to the clerk’s office. In addition, the plaintiff must pay for serving the respondent. Sometimes, these expenses may be assigned to the defendant or shared after a trial. If your financial situation is difficult, you can ask the judge to exempt you from paying mandatory court fees.

If you decide to initiate a divorce and look for a way to reduce the negative impact of filing first, you need to prepare for the process well and be reasonable about court requests. It may help to decrease the number of contested issues arising between you and your spouse during the marriage dissolution.

Can You File for Divorce Together?

If you and your spouse can agree on the divorce terms independently or are ready to turn your case into an uncontested one, you can file a joint petition for divorce. It is a suitable option for those couples who want to avoid numerous court battles and quarrels over marriage termination issues.

What is a joint petition for divorce? It is a legal document that can be filed by both spouses simultaneously. In this case, they will be co-petitioners and will not need to serve each other with a set of papers to notify each other about the lawsuit because neither of them will be a defendant.

Filing a joint petition for divorce in California is possible for summary dissolution, which involves a simplified divorce procedure.

To qualify for summary dissolution of marriage, you and your spouse must meet all of the following requirements:

  1. The duration of your marriage does not exceed 5 years.
  2. You have no children, and neither of you is pregnant at the time of filing the petition.
  3. You do not own any real estate.
  4. You have no debt exceeding $6,000, except for a car loan.
  5. The value of your marital and separate ownership is less than $47,000 each. Exceptions are only debts for property or cars.
  6. You both refuse to receive any alimony.
  7. You have signed an agreement on property division and a joint petition and paid mandatory court fees.
  8. At least one of you has lived for 6 months or more within the state and for no less than 3 months in the county where you file for divorce if your marriage is not same-sex.

Even if your case is uncontested but you do not meet one of the above requirements, you cannot file for divorce together. Instead, you can submit paperwork to the court for a traditional marriage dissolution, having resolved all disputes regarding the divorce terms and agreed on who would be the petitioner and who would be the defendant. In most cases, filing for an uncontested case will shorten court proceedings and help maintain friendly relations with your soon-to-be ex.