Can Both Spouses File for Divorce?

By Beverly Bird

Some lawyers will tell you that there's no legal advantage in being the first spouse to file for divorce, although depending on the details of your particular case, it may give you a strategic edge. However, if your spouse beats you to the courthouse, all isn't lost. You can file a counterclaim of your own, which is essentially a complaint in response to your spouse's filing.

Some lawyers will tell you that there's no legal advantage in being the first spouse to file for divorce, although depending on the details of your particular case, it may give you a strategic edge. However, if your spouse beats you to the courthouse, all isn't lost. You can file a counterclaim of your own, which is essentially a complaint in response to your spouse's filing.

Filing a Counterclaim

If your spouse has already filed for divorce, you can't file a petition or complaint of your own. Instead, you must file a counterclaim, but this in essence acts as your own complaint. It bears the same case number as your spouse's filing, but it's a legal action in itself. If she decides she doesn't want the divorce and tries to dismiss the case, she can't – she can only dismiss her own pleadings, and your counterclaim will move ahead uncontested.

Divorce is never easy, but we can help. Learn More

When There Are Two Petitions

If you try to file a divorce complaint -- rather than a counterclaim -- in the same county where your spouse has already done so, the court probably will not accept the second document. You might be able to file in a different county, but the court must usually dismiss your action when it learns of the other filing.

Joint Petitions

In some states, you and your spouse can file for divorce together, submitting a joint petition or complaint. This usually requires that your divorce be uncontested, and you may have to submit a signed marital settlement agreement to the court at the same time.

Divorce is never easy, but we can help. Learn More
What Is a Counterclaim for Divorce?

References

Related articles

Can the Respondent Finalize a Divorce if the Petitioner Won't Sign?

Sometimes a spouse files for divorce only to find out that the process is not going exactly the way she anticipated. She might realize that a court isn’t likely to grant her everything she asked for in her petition, or that you won’t agree to everything she wants in a marital settlement agreement. However, once the proceedings are under way, there’s only so much she can do to stall them. This is true even if she was the one who filed for divorce first.

Advantages of Filing for Divorce First

Many attorneys will tell you that getting the jump on your spouse and filing for divorce first has no effect on your case. To some extent, this is true. But filing first is proactive, and it might help you feel like you’ve done something toward improving your future and taking control. There are some subtle and important legal advantages as well.

What Happens When You Are Served Divorce Papers?

Most people are not able to think clearly in the hours or even days after they receive divorce papers. Although the laws are slightly different from state to state, most courts understand this and give you time to respond. You don’t necessarily have to act immediately, but you must do something eventually if you’re going to protect your rights. No state forces a spouse to stay married just because her partner does not respond to her divorce petition -- she’ll just move forward with the proceedings and obtain her divorce without the spouse's participation.

Get Divorced Online

Related articles

The Response to a Petition for Dissolution

Getting served with a petition for dissolution or divorce is unnerving at best, even if you're expecting it. You may ...

Motion to Reinstate a Divorce Complaint

Deadlines and mandatory court filings can complicate the divorce process, especially when you’re representing ...

Does My Husband Need My Permission to Cancel the Divorce?

Both spouses do not have to consent to a divorce for the court to grant one. All states recognize no-fault divorce, ...

Do I Have to File an Answer to a Complaint in a Divorce in Pennsylvania?

In Pennsylvania, either spouse can file for divorce by completing a divorce complaint. The divorce complaint will state ...

Browse by category