The Pros and Cons of Filing for Divorce First

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by | Apr 10, 2022

Should I Consider Filing for Divorce First?

If you’re thinking of filing for divorce, you may be wondering if filing for divorce first is in your best interest. As with anything, there may be pros and cons of filing first or waiting to be served with divorce papers. If you’re considering filing first, we’re going to take a look at whether there is an advantage.

Benefits of Filing for Divorce First

Some people do see some benefits in initiating the divorce process, although in some cases, it may not matter. But if you want to be the one who files first, here are some advantages of filing that could work in your favor.

1. Timing

When you’re the one filing for divorce first, you can choose the timing of the divorce case. The spouse that files decides when the entire process starts. Choosing when to begin the process sets the timetable for when your spouse has to respond to the papers you have sent. The law gives your spouse 20 days to respond to your divorce papers and hire a divorce attorney if they choose. If you wait for your spouse to file, they would have the benefit of choosing the timing.

2. Control

Another advantage to filing the divorce first is that you’re in control. You’ve filed the papers and now you have some control over how things proceed. If your case goes to trial, you would go first in the proceedings because you’re the one who filed the papers. Some people feel that going first in the proceedings provides some legal advantages.

3. Choosing Your State

When you file first, you can choose the state where the divorce will take place. Some people prefer to have their divorce filed and heard in a particular state because the divorce laws differ. Topics like alimony, debts, and asset distribution can all be reasons why people choose to get divorced in one state rather than another.

4. Preparation

When you file first, you have more time to prepare. There really is no element of surprise. You already know that the divorce is in motion. You have more time to prepare your case and decide what you want out of the separation.

5. Check Assets

When you are filing for divorce before your spouse, you have time to see if your spouse is hiding any assets. You can make sure that all assets are out in the open and that they haven’t been hiding things during your marriage. Then you’ll be better prepared when it comes to the division of property. It also puts you in a better position to request equitable distribution of all marital property, retirement accounts, etc.

6. You Get the Last Word

Besides having some control, you also have the last word in divorce court. You have the advantage of responding to the defense and having the opportunity of getting the last word before the judge makes a decision.

Disadvantages of Filing for Divorce First

While some people see some benefits of filing for divorce first, there can also be some disadvantages to consider.

1. Your spouse knows your demands

While some see it as a positive thing that their spouse knows what they want and that they’ve set the tone of the divorce, others see that as giving them an advantage. Since they know what is wanted, they have time to prepare a defense.

2. You may pay more

The person who files for divorce can expect to pay more in fees. Also, you’ll have to pay the divorce cost fees for serving your spouse with divorce papers. Besides paying for filing fees, you may also have to pay more in attorney fees. These are things to consider as you think about filing for divorce first.

Common Filing First Questions

If you’re thinking about filing for divorce first, you may have some questions about what’s going to happen and whether there really is a legal advantage.

Why is it best to plan for divorce first?

There are several reasons why people think that it’s better for them to file for divorce first. One of these is that they get first choice of local attorneys. When you’re the one filing, you can choose the best divorce lawyer in the area to represent you. Having a great attorney is key in some cases of community property, the division of assets, custody battles, and more.

You also have time to get all of the necessary documents ready. Since you’re the one filing first, you can visit with your divorce attorney and get a list of documents that you’ll need to have ready. You don’t have to wait around to be the one served.

You can also prepare yourself financially. Being on your own is going to change your financial future situation. When filing for divorce first, you can think about your budget and what your new living expenses are going to look like.

Can both spouses file for divorce?

No, only one spouse can file for divorce. This spouse who files the petition for divorce is referred to as the plaintiff. The other spouse is called the defendant.

Does the person filing divorce automatically get custody of the children?

When it comes to custody, it doesn’t matter who filed for divorce first. Custody does not default to the filing spouse. Other factors will determine this. The judge will look at both parents and decide what’s in the best interest of the child.

The Bottom Line on Filing for Divorce First

As you decide whether you want to be the one to file for divorce, you should consider some things that could play into your favor. This includes having some control over the timing of the proceedings as well as being able to prepare yourself financially and emotionally.

However, those who file first can face more fees and need to realize that they’re showing their cards to their spouse. Your spouse will automatically know your intentions and have time to prepare a defense.

In the end, you need to decide which position is in your best interest. If you’re considering filing for divorce first, you should contact an experienced family law attorney or legal team who can represent you and make your best interests a priority.

Reach out to the law offices of the Jimenez Law Firm for an initial consultation or if you have any questions about prenuptial agreements, postnuptial agreements, divorce mediation, or in regard to property division or filing for divorce. We’re here to help with your child custody, child support, or divorce case.