A final decision to divorce is a long journey that the spouses need to go alone. Leaving the family is very difficult, and not everyone is ready to be the first one to do it.
On the one side of the internal debate are conflicts, problems, and constant quarrels with a partner, and on the other – good memories, the habit of being together, and children.
There is no difference between a spouse who files for divorce, called a petitioner, and the other party called a defendant or a respondent depending on the state. The laws of all states grant equal rights to both spouses while representing their cases in court.
But there are some benefits and downsides in initiating the divorce proceedings.
No matter how hard it is to decide to file for divorce first, sometimes it is the only right step in the current circumstances. But many are afraid of making this step because they believe that the person who initiates a divorce faces more complications than the other spouse.
This popular belief is fundamentally wrong. Let’s analyze all advantages and disadvantages of filing for divorce first.
Advantages of Filing for Divorce First
If you are thinking about the advantages of being the first to file, then you are on the verge of separation and, consequently, must make the most out of this unfortunate event.
There are many pros, both legally and financially, in favor of starting the action before your spouse. By creating and following a smart strategy, you can land yourself a better outcome.
For instance, a petitioner can choose where and when to file. Not all courts have the same conditions, even though they apply the same laws. Some judges are more inclined to award alimony or more considerable child support, while others are sympathetic to child or spousal abuse cases.
More freedom of choice
The person who decides to break the family ties first can also be the first to choose the location to do it. Naturally, the petitioner cannot choose absolutely any court in any state if none of the spouses lives there. According to each state’s law, a married couple must meet residency requirements before bringing any marriage dissolution action.
For example, if the husband meets the residency requirements in Colorado and the wife meets the residency requirements in Missouri, a petition can be filed in either state.
Imagine that you and your spouse live in different states. If you choose to file your papers first, you can select a court close to your home, and you won’t have to travel many hours to attend a court hearing.
Sometimes you even manage to choose a judge who will handle your case. Being on your territory, you can more easily solve complicated issues. Plus, your lawyer would probably be acquainted with all the local rules and judges’ habits in your county.
A chance to set the right direction
The petitioner can set the tone for legal proceedings. Unless the couple plans to get an uncontested divorce, the first impression is critical. By being the first to file a divorce petition, the plaintiff can present their case from a beneficial side.
Since highly contested cases must go to court, both sides will get a chance to speak before a judge. And a petitioner always goes first. So, it is another chance to turn the case in your favor.
Each petition contains the cause for the marriage dissolution. These reasons can be no-fault (separation and irreconcilable differences) or fault-based (adultery, cruelty, abandonment, etc.).
In some states, fault grounds can affect property division and financial assistance from one spouse to another. For example, a judge will likely award less alimony or even deny it to a spouse guilty of an affair. And an abusive parent will not get custody of minor children.
A move to protect property
By initiating the divorce process, you can control protecting community assets beforehand and figure out if your spouse is hiding some part of the property. You can assess your financial situation by making a list of all assets, debts, separate property, real estate, joint bank accounts, and retirement benefits.
During the property division, a judge will consider all relevant factors and divide the property equally between the spouses. For this process to be as fair as possible, you need to provide accurate information about family income, debts, financial behavior (e.g., excessive spending of marital funds), contributions to marital property, and other important circumstances.
Filing first, you’ll be able to prepare all required evidence on time.
At the same time, spouses who end their marriage amicably do not have to worry about who files first because they would still have the same terms as they have negotiated.
More time to collect information
Collecting all the information you need can be difficult and time-consuming. You need to prepare state-specific divorce paperwork and all kinds of confirmation and evidence.
If your spouse filed for divorce before you, you would have very little time to collect the response documents. Therefore, get ready in advance, especially if you cannot agree to part with your spouse amicably.
Divorce forms vary significantly from state to state. If you have an uncontested divorce, you can find a ready-made package of documents that will meet your state’s requirements. But with conflicting marriage dissolution, everything is much more complicated.
Below is a rough list of required documents and evidence:
- Petition for Dissolution of Marriage;
- Financial and mortgage statements;
- Bank and investments account statements;
- A copy of pension plans and funds, IRAs;
- Descriptions of real estate and vehicles;
- Copy of individual and joint tax returns, etc.
Find a competent lawyer
Finding a good lawyer is not easy these days, especially if you live in a small town. While you are just gathering your thoughts, there is plenty of time to visit a family law firm and discuss everything with specialists, choosing the most qualified one.
With a divorce attorney who has vast experience in resolving family disputes, you have every chance of getting the most profitable outcome. Moreover, a qualified legal specialist can tell you precisely who should file for divorce first, considering the current situation.
Maybe it would be wise to wait for some particular event or your spouse’s action, and vice versa.
Besides, imagine the situation when you receive the divorce papers that take you by surprise. Being a respondent, you only have 20 or so days to figure out what to do and file your counter-claim.
In this short period, you need to cope with the shock and urgently seek a lawyer.
You may not have time to choose a reliable specialist and may have to go with the one you don’t know well or has too high an hourly rate. This can all be avoided if you are the first to file your case.
Plan your actions ahead of time because it will pay off in the future.
A way of ensuring safety
Abuse and cruel treatment are precisely why most domestic violence victims file for divorce before their spouses. In most families, the man is the main culprit of such a situation, while the woman is usually a victim.
However, if we talk about emotional abuse (threats, humiliation, etc.), any spouse can be the victim. The first step in a divorce is essential if something threatens your physical or emotional safety or the safety of your children.
Not only will you use an element of surprise but also avoid possible violent reactions from a partner.
Before starting the proceedings, you can prepare a domestic violence complaint containing all the abuse facts. It will help you later in court in the battle for child custody or when dividing property.
The Family Courts have jurisdiction over other types of petitions, not only the one for marriage dissolution. Depending on the circumstances of the original marriage dissolution case, the judge may authorize limited visits of guilty parties to children, visitation under the supervision of relatives, or even under the control of a social service agency.
Obtaining temporary orders first
A petitioner can file a motion asking for a temporary orders hearing when submitting initial papers. Temporary orders streamline some aspects of family life during the marriage dissolution process.
For example, these orders determine what happens to the children while the case is pending. The following are the main issues that can be addressed with an interim hearing:
- Possession of a marital residence;
- Temporary child support;
- Possession of family vehicle;
- Child visitation schedule;
- Sale of joint property, etc.
You can ask the court to schedule temporary financial aid payments until the judge signs a final decree. As part of this temporary support, you can also receive compensation for attorney fees, health insurance costs, and other expenses.
In addition to general temporary orders, there are also temporary restricting orders and standing orders (in some counties). TROs are used when one of the parties expects some harmful actions from the other partner.
Such restrictions are short-term and last until a temporary hearing, which is usually scheduled within two weeks.
Disadvantages to Filing for Divorce First
Now that the benefits of filing first are obvious, let’s look into the disadvantages. They are not so numerous but can be important in certain circumstances. As a matter of fact, the following downsides can be handled if you and your spouse are willing to proceed with an uncontested divorce.
Explore all possible obstacles, and then choose the best strategy. It’s up to you to answer the question – is it better to file for divorce first or wait for your spouse to do it?
Slightly more paperwork
A person filing for divorce is required to notify their spouse according to current civil procedure. You must provide the other party with a copy of a petition and summons in person or by certified mail.
However, if you cannot find your husband or wife, the court will allow an alternative method – by newspaper publication. But to get permission to do this, you must provide evidence that you have thoroughly searched for your spouse and may even have hired a private detective.
The cost of all these activities is something that you don’t want to be paying.
So, does it matter who serves divorce papers first on the other spouse? It does if you don’t want to pay a private process server or a sheriff for delivering the documents to your partner.
Higher court fees
Every time a person files a complaint, they need to pay a filing fee. It is mandatory for all cases. The price is different throughout the country and sometimes can reach $450. A defendant, however, usually pays a lower amount or nothing at all.
For example, in Illinois, the fee is $388 for the petitioner and $251 for the respondent.
But then again, some states require that both spouses pay the same amount of money, no matter who files an original petition and who submits the answer and a counter-claim.
However, you have the option to apply for a waiver of the obligation to pay this fee. Depending on the state, you will need to fill out a particular form and provide some basic information about your income and expenses.
After reviewing your application, the judge will decide whether to grant your request or not.