Does It Matter Who Files For Divorce First in Texas? - Online Divorce
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Does it Matter Who Files for Divorce First in Texas?

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.

Married couples facing divorce are hesitant when deciding whether to wait for their spouse to file for divorce or do it independently. The question “Is it better to file for divorce first in Texas?” has no definite answer.

Of course, everyone chooses what seems the most convenient and profitable at the moment. For making the right choice, we need to get at least a little familiar with the aspects of the marriage dissolution process from the legal side and only then evaluate all the pros and cons.

Generally, it is irrelevant since the law ensures equal rights for both a Petitioner and a Respondent. However, in most cases, the question of who should file for divorce first is not straightforward.

Many nuances occur when it comes to the division of property or awarding alimony payments. In some cases, it is merely necessary to file for divorce first. In others, it will bring some benefits, and for some of them, it does not matter. Everything depends on the specific situation of each couple.

Benefits of Filing First

Being the first to file for divorce holds several benefits, such as more control over the process, collecting critical legal documents, timely protecting marital assets, and presenting the case from the beneficial point of view.

Although most couples do not go to court trials, a petitioner will get to present their side first if they do. All of these and other fundamental advantages are listed below.

The venue choice

The petitioner has the opportunity to choose where to start the divorce proceedings. This option is relevant if the spouses live in different locations (states or areas). For example, take a case where a man is a Texas resident, and a woman lives in Florida.

According to both states’ residency requirements, divorce can be initiated in either of them when at least one of the spouses is a particular state’s resident. Texas law requires that either party has lived for at least six months before the filing (TX Family Code § 6.301).

The same goes for counties within Texas. The petitioner can choose a court in the area where they live. By doing so, they will not have to travel for several hours to attend court hearings, unlike a respondent who lives at the opposite end of Texas.

On the other hand, a person who initiates a divorce can choose a court in the county where the other party lives if conditions are more acceptable.

More time to prepare

Filing first makes a significant difference if we consider the time needed for preparation. A petitioner can prepare financially and emotionally and choose the right moment. They have time to find a lawyer and discuss all legal issues.

They also have the liberty to thoroughly collect divorce paperwork and think in advance about the evidence required in court.

In Texas, a divorce package usually includes but not limited to:

  • Original Divorce Petition
  • Affidavit of Indigency
  • Waiver of Service
  • Final Decree of Divorce

The spouse filing the lawsuit states the desired conditions point by point. In turn, the respondent agrees with a specific fact or denies it. The proceedings are reduced only to conditions to which the other party does not agree.

For uncontested divorces, it is irrelevant because the parties apply for it together.

A chance to include fault grounds

When a divorce case is filed with the court, a petition must contain a reason why the marriage should end. In Texas, those reasons include separation, adultery, cruelty, abandonment, insanity, a felony, and lack of financial support (TX Family Code Chapter 6-A).

Filing for divorce first in Texas, a petitioner can choose one of the fault grounds and acquire some benefits throughout the proceedings.

If a husband or a wife is guilty of adultery, which is a proven fact, it will affect the spousal support amount. A judge may deny an alimony request from a cheating spouse or award more money to the innocent party.

Adultery, cruelty, and family violence are taken into account when determining maintenance, according to Texas Family Code § 8.052.

Early assessment of family finances

Early tracking of household income and expenses is crucial for property division later. Texas is a community property state, so everything the partners acquire during the marriage will be divided equally.

A spouse who decides to file first has access to all financial information, unlike the one who later finds out about the divorce proceedings.

A filing spouse can sort out retirement savings, which are part of marital property. Each spouse is entitled to a share of money from retirement accounts, regardless of the earnings.

Before the case is filed, a petitioner can freely look into bank accounts and different income sources. Such activity would be more complicated if the other spouse knew about the action and tries to hide assets.

The request for temporary orders

One of the other undeniable advantages of filing first is a chance to ask the judge for temporary orders. An interim order determines what happens with assets and children while the case is pending.

The request may address the following issues:

  • financial support during the proceedings;
  • who will stay in a family residence;
  • prohibition of spending marital funds;
  • child custody and support, etc.

If there is no time to wait for a hearing, a filing spouse can ask for a temporary restraining order (TRO). It can immediately protect property from being transferred, restrict withdrawing money from bank accounts, and block insurance beneficiary name changes (TX Family Code § 6.501).

TRO is active for 14 days and can be renewed or transformed into a temporary order.

Disadvantages of Filing First

The list of positives above is pretty compelling. But as with any issue, there is a downside to submitting documents first. There are not so many of them, but perhaps for someone, they can play a critical role in making a decision.

Below are some of the problems that a person starting a marriage dissolution will have to face.

A higher filing cost

If we talk about the financial costs of initiating the process, the plaintiff must pay a couple of hundred dollars more than the other party. In Texas, as in all other states, a filing fee is to be paid when submitting initial documents to the court. In different counties, it ranges between $300- $400.

Whether you hire a divorce attorney from a family law firm or do everything yourself, you still have to pay that price as the initiator.

But there is a way out. First, for those who cannot pay the fee due to a lack of financial resources, the state provides a waiver of payment. To do this, they need to submit an Affidavit of Indigency to the court.

The second option is to share the amount of the fee with the spouse. It often works when couples decide to break up amicably.

Responsibility to inform another spouse

The party filing for divorce is obliged to send a legal notice to the other spouse. These documents must be served in a legally acceptable way. One of them is by official service of process when the other party receives papers from a sheriff or a private server.

Another option is for the court clerk to mail the documents to the defendant with the requested return receipt.

However, if the spouses choose to part peacefully and resolve their issues, they usually go with another more simple option. One of them files a petition, and the other signs a Waiver of Service. In this way, they state that they do not want to be served with the papers, and there will be no counterclaim.

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