Should I file my divorce first?

Filing for DivorceOne of the most common questions many ask when they are contemplating filing for divorce is whether it matters whether they file first or not.  This is an important question because many legitimately want to work out their marriage versus filing for divorce.  At the same time, they don’t want to be put at a disadvantage if they wait and their spouse files first.

The reality is that family court judges are to decide cases based on the merits.  There isn’t an inherent advantage to one party filing first or not.  Courts will ultimately have to decide whether they marriage is irretrievably broken, how to divide marital property and debt, child custody, child support, spousal maintenance and attorney fees.  Further, it would  problematic, and seem wrong, if one party was explicitly rewarded for rushing to the courthouse.  This would work as an encourager of divorce.

There is, however, an important difference between those who file for divorce first and those who do not.  The individual who files first is the petitioner.  The other party to the divorce is the respondent.  If a case settles outside of court, the reality is who files first really shouldn’t matter in most cases, except situations where there might be a dispute over jurisdiction (the state in which a case is heard) or venue (the county in a state where a case is heard).

In cases where the parties cannot settle and a trial is required, the petitioner does put their evidence on first in a divorce trial.  The respondent gets to put their evidence on after the petitioner rests.  In some cases, this might not make a difference.  However, in other cases, first impressions can sometimes matter.  For this reason, some would argue that there might be a slight advantage to being a petitioner in a divorce cases.  Others might believe, on the other hand, that being able to counter-punch by being the respondent might be an advantage.

If you are contemplating whether to file for divorce, Stange Law Firm, PC can help.  You can contact us at 1-855-805-0595.

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