Advantages of Filing for Divorce First

By Beverly Bird

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.

End Date of Marriage

The date you end your marriage can be of critical importance in community property states. These include Texas, Nevada, New Mexico, California, Arizona, Idaho, Washington, Wisconsin and Louisiana. In these states, spouses own an equal share of everything earned or purchased during the marriage, and they are equally liable for debts as well. Everything you earn or buy after the day you file for divorce is generally yours. You’re also not responsible for any debts your spouse might run up after the filing date of your divorce complaint. In equitable distribution states, a judge often decides property division on a case-by-case basis, but these states use the date of complaint as a severing point for separately owed debts and jointly owed assets as well. The sooner you file, the sooner you're protected.

More Immediate Relief

If you’re in a tenuous situation where your spouse has moved out and isn’t contributing to marital bills, or if you’ve moved out and your spouse won’t let you see the children, filing for divorce allows you to immediately petition the court to fix these situations. Generally, motions for temporary relief must be “attached” to an active divorce complaint; they’re filed with the court under the complaint’s docket or case number. The sooner you file for divorce, the sooner you can address immediate problems and secure the status quo while your divorce is pending. Some states have waiting periods before divorces are final.

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

Control of Proceedings

Filing for divorce first gives your attorney a small edge as well. If you file on fault grounds and you live in a state where this might eventually affect custody or alimony issues, a judge will become aware of your side of the story first if you file first. Judges normally read all documents filed in a case prior to hearing an issue, and they usually read them in the order they’re filed. You’ll have the first say, and if you can’t reach a settlement with your spouse, your attorney will have the first chance at trial to present your evidence and your arguments to the judge. Your spouse’s attorney is generally left to try to rebut your case by presenting evidence of his own.

Tip

If your spouse files first, this doesn’t mean your case is doomed to failure. You can file a counterclaim to his complaint. This allows you to list your own allegations, rather than merely respond to his. A counterclaim also usually prevents your spouse from dismissing your divorce for any reason. In effect, a counterclaim is like a litigation within a litigation. Your spouse can dismiss his own case, but he can’t dismiss your charges. If all you do is answer his divorce petition, you don’t have this same protection. This isn't true in all states, however, so consult with your attorney to find out if it’s worth submitting a counterclaim if your spouse files first.

Divorce is never easy, but we can help. Learn More
How Long to Get a Divorce in Illinois?

References

Related articles

Does it Matter Who Files for Divorce First in California?

The court usually doesn't care which spouse files for divorce first, particularly in California. This is a pure no-fault state, and you can only file on grounds of irreconcilable differences, or allege that your spouse is incurably insane. Because marital fault isn't an issue, both spouses have equal legal footing, regardless of who instigates the proceedings. Filing first might lend a few practical advantages, however, depending on your concerns.

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 have less than a month to react and file a response with the court – usually about 20 days. If you do nothing, your spouse will probably be able to end your marriage by default. This means she'll get much – if not all – of what she asked the court for in her petition.

Ways to Respond to Divorce Summons in North Carolina

No matter where you live, when your spouse serves you with a divorce summons, it's possible to do nothing at all. However, in most states, you'll risk a lot if you don't respond. If your spouse has asked for full custody and all the property you own, you'll give up these things without a fight if you don't answer. This isn't always the case in North Carolina because divorce complaints generally don't include requests for property or custody.

Get Divorced Online

Related articles

Can Both Spouses File for Divorce?

Some lawyers will tell you that there's no legal advantage in being the first spouse to file for divorce, although ...

Can You Get a No Fault Divorce if the Spouse Is in Prison in Arkansas?

Arkansas does have a no-fault ground for divorce like other states, but not all marriage situations qualify to use it, ...

What Is a Counterclaim for Divorce?

When your spouse serves you with divorce papers, the worst thing you can do is nothing. If you don't respond, you run ...

How Do I File a Response to Divorce Papers?

The emotion of a divorce is often further complicated by the legal labyrinth you find yourself trying to navigate after ...

Browse by category
Ready to Begin? GET STARTED