Does It Matter Who Files For Divorce First in Tennessee? - Online Divorce

Does It Matter Who Files For Divorce First in Tennessee?

Divorce specialist Jamie Kurtz
Jamie Kurtz has been a practicing divorce lawyer since 2008. She received her Juris Doctorate from Southwestern Law School in Los Angeles in 2007. Ms. Kurtz was selected to Rising Stars for 2013 - 2016, 2019 - 2020, a peer designation awarded only to a select number of accomplished attorneys in each state. She also co-founded a law firm that specializes in uncontested divorce cases.

A marriage breakdown can bring heartache, depression and ruin relationships with friends and family members. Many people remain in unhappy relationships for years or decades because they are afraid to be the first one to file for divorce.

They believe that starting a divorce in Tennessee is extremely difficult and could somehow ruin their chances of getting a favorable outcome.

As in other states, Tennessee judges treat a petitioner and a defendant equally fairly. Therefore, officially, it makes no difference which spouse initiates a divorce. Yet, filing for divorce first in TN can bring several benefits that we will discuss below.

If we assess the question from the other side, the spouse who waits to be served with divorce papers may face more adverse consequences. They include insufficient time to find a qualified divorce attorney, inability to collect financial information on family assets and debts, a lack of choice to initiate the action, and emotional unpreparedness.

Advantages to Filing for Divorce First

As you ponder who should file for divorce first in Tennessee, think about what benefits you can get if you are the one to go first. Naturally, you hesitate to make such a responsible step, not knowing what consequences your decision could entail.

It is precisely why you should study all possible advantages and make sure that filing for Tennessee divorce first may be the best decision in the given circumstances.

Going to court before your spouse will give you time and resources to prepare for the divorce proceedings and get a better outcome. You will have more control over the process. For example, you can decide when to start your case. Being first to file is also an excellent way to protect your property.

The longer you wait, the more chances that your husband or wife will make the first step, leaving you in a less advantageous position.

Timely strategy planning

Starting a divorce first means that you have probably contemplated the overall strategy and what result you would like to achieve. For instance, you might decide to go with an uncontested divorce, use mediation sessions, or go to trial. Before the proceedings start rolling, you have time to hire a lawyer or save money by collecting all the papers yourself.

You can make arrangements regarding children and the family home and move forward with a plan.

When you file for divorce first, you can also choose the county where you file the application. Most often, people select the county that is more convenient for them. If your spouse lives in another state, the court’s location will be of great importance to you.

Suppose a man lives in one state and a woman in another. In this case, they can choose either state to file their lawsuit. One thing to be aware of is the residency requirements. In Tennessee, one of the spouses must be a resident of the state for six months before filing (TN Code § 36-4-104).

Taking the lead in the divorce case

In contested cases that go to court trials, it often matters who files first because that person typically takes the lead. A petitioner and their lawyer will present their case first during a hearing, while the respondent would go second.

It could be a great advantage in particular circumstances. The first impression of a judge considering your case is crucial for achieving the desired result, such as getting custody of children or a larger part of the property.

Also, the petitioner decides on what basis to dissolve the marriage. Tennessee has the following legal grounds (reasons):

  • adultery;
  • substance abuse;
  • alcoholism;
  • inappropriate marital conduct;
  • conviction of a felony;
  • desertion;
  • irreconcilable differences;
  • separation for two years, and others (TN Code § 36-4-101).

The main point here is that you can gain some benefits by choosing one of the fault-based causes. For instance, adultery as a reason for a marriage breakdown can influence the alimony because it is a factor for considering its amount.

Protection of assets

It’s not uncommon for spouses to hide some family assets when they anticipate a divorce. Each spouse wants to get more money, a larger share of property, retirement savings, and they are unsure whether a family law court would eventually give them what they want.

In Tennessee, all property acquired during the marriage is classified as marital and divided equally between the spouses. It can also include a separate property of a spouse if it was somehow commingled with marital. That’s why some people are afraid to be left with nothing and try to hide as many assets as they can.

By submitting your case first, you can gather financial information ahead of time, such as your spouse’s bank account statements and real estate records, and make a full list of personal and joint property.

Note that withdrawing money from joint accounts is not the best practice, as judges usually disapprove.

Control over the proceedings

Court decisions rarely coincide with what you would like to receive if you go with the flow and hope that everything will magically resolve in your favor. You should not let the divorce process go without your involvement, even if you are entirely sure you are right.

In litigation, the person who is thoroughly prepared has a better chance to win the game. If you start the marriage dissolution process first, you have more control over it than your spouse.

Not only can you choose the venue and the right timing for your action, but you could also dismiss the proceedings in some circumstances. There are few reasons why you would want to do it.

First, you and your spouse might decide to reconcile and give your marriage another chance.

Second, if you feel that a judge will enter an unfavorable judgment, you can dismiss your claim and then refile it later. This option is only possible if your spouse (a respondent) has not filed a counter-claim.

Temporary injunctive relief

In Tennessee, after a divorce complaint has been filed, the court imposes several restrictions. They are called temporary injunctions, and there are many aspects that they can influence.

Generally, they prevent any actions concerning property, children, and even behavior before you officially get divorced. For instance, mandatory injunctions prohibit the following things (TN Code § 36-4-106):

  • transferring, selling, concealing, borrowing against, or dissipating the marital property;
  • hiding of expenditure records from the other party;
  • change of beneficiaries on an insurance plan or its modification;
  • harassing, threatening, or abusing the other party or children;
  • hiding, spoiling, or destroying evidence on computer hard drives and memory storage;
  • relocating children more than fifty miles away from family residence without other spouse’s permission or court order.

You also have the power to ask a judge to broaden the scope of these injunctions if you feel that they wouldn’t be sufficient to protect your property or children.

If your divorce is contentious, you would probably need someone to protect your rights and ensure you get the desired outcome. But finding the right divorce lawyer is a tedious task that cannot be accomplished on short notice. Unless you already have a legal specialist you trust, start looking for the one immediately.

Uncontested divorces are the only ones you don’t need to hire an attorney. In other cases, it is paramount to be represented by an experienced specialist who can advise you on all necessary actions. And it’s better if you use their help long before the beginning of a divorce process in court.

The involvement of a reliable lawyer is essential in the property division and child custody. Only an experienced lawyer could reasonably prove that your spouse’s separate property is also subject to division if you invested your money in its improvement.

It will require collecting evidence in the form of contracts, receipts, and witness statements, and it’s not always something you can do on your own.

Disadvantages to Filing for Divorce First

Answering the question “Is it better to file for divorce first in Tennessee?” we should also consider downsides and possible complications that a person could face by being the initiator.

Several aspects complicate the life of the plaintiff but do not affect the defendant in any way. Two of the most evident are legal fees and a plaintiff’s obligation to serve papers on the defendant.

Higher filing costs

A person filing a divorce complaint must pay a filing fee according to court rules. In Tennessee, this fee’s amount differs from county to county depending on whether the family has minor children.

A petitioner will pay approximately $300 if there are children to the marriage and $380 for divorce with children.

Compared to the fee for a counter-claim, which is about $100, you could say there is a big difference. Let’s also not forget about the cost of delivery of documents to the other spouse. Since you cannot serve your spouse yourself, you need to pay a sheriff, whose services would cost approximately $40.

However, you should not worry about this filing fee issue unless you and your spouse have conflicts. In a no-fault, uncontested divorce, you typically split the expenses in half with your spouse.

Obligation to notify your spouse

The petitioner is obliged to inform the other party about the beginning of the divorce proceedings. The process of delivering documents for divorce can become a daunting task.

According to civil procedure rules, you cannot personally give documents to your spouse. You must hire a sheriff or a private process server. Now imagine that your spouse is out of state, or even worse – you have no idea of their whereabouts.

Before a judge can permit service by publication in a newspaper, you would need to diligently look for your spouse at all known locations.

There is a solution, however. If you and your spouse have discussed all the points of your separation and signed a settlement agreement, the responding spouse can file a waiver of service, thus making your life easier.


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