QUESTION
Is it advantageous for a spouse to be the one to files the petition for divorce?
Asked on Sep 12th, 2011 on Child Custody - New Jersey
More details to this question:
I heard that legally it would be in my favor to file before he does, is that true? If it is true, what advantage does it hold? As far as I know there has been no infidelity and he wants an amiable agreement to move on because he feels that we are incompatible.
18 ANSWERS
In the cases I have handled, I have not seen an advantage for the one who filed for divorce first.
Answered on Jun 24th, 2013 at 12:58 AM
Family Law Attorney serving Petaluma, CA
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Law Office of Erin Farley
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There is no legal relevance or advantage to filing first. If your husband is open to an amicable settlement, and he is a reasonable man, then my advice is to continue to work together toward a mutually agreeable outcome.
Answered on Sep 14th, 2011 at 2:20 PM
Roianne Houlton Conner
Yes, the first one to file get to present their case first in Court and therefore can make the first impression on the Court.
Answered on Sep 14th, 2011 at 2:17 PM
Civil Attorney serving Spokane, WA
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Glenn E. Tanner, Attorney at Law
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In Washington, the Petitioner will have the primacy and recency advantage at times but the advantage is debatable and negligible.
Answered on Sep 14th, 2011 at 1:44 PM
There is not much of an advantage in Wisconsin for being the first to file. Sounds like you both may be able to do a joint filing, and then perhaps explore mediation as a way to proceed through your divorce.
Answered on Sep 14th, 2011 at 1:02 PM
Family Law Attorney serving Pasadena, CA
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Law Offices of Paul P. Cheng
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The Petitioner in a cause of action sets the stage for what relief they want. They are also the first and last heard at time of trial.
Answered on Sep 14th, 2011 at 12:37 PM
Patricia C. Van Haren
The only advantage to filing first is so that you can choose the courthouse you wish to file in. There are no other advantages. California is a no fault state so issues such as infidelity or other reasons are not relevant in a divorce.
Answered on Sep 14th, 2011 at 12:33 PM
Criminal Defense Attorney serving Pittsburgh, PA
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Law Office of Jeffrey L. Pollock
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There is no advantage legally to who files a Divorce Complaint (Plaintiff/Petiitoner) and who is the Respondent/Defendant. There may be a psychological benefit to claiming to be "the wronged one" or "the one who wanted to stay married."
Answered on Sep 14th, 2011 at 11:51 AM
Immigration Attorney serving Las Vegas, NV
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Reza Athari & Associates, PLLC
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This is a matter of opinion, but most judges would tell you that it does not matter whether you are the plaintiff or defendant. I find it hard to believe that it has no subliminal impact, however small that would be. If the parties file a joint petition for a summary decree of divorce then it is most likely that the court will simply order what the parties have agreed to and in that case it would not matter who was the plaintiff or defendant. Even parties that do a joint petition can benefit from the advice of counsel because an experienced family law attorney can provide advice on property division. My office provides free consultations on such matters.
Answered on Sep 14th, 2011 at 10:56 AM
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Opinions differ, even amongst attorneys. My opinion is it makes no difference who files first. On the other hand, you may not want to wait around until the other side files. There can be many disadvantages to waiting. I suggest you consult an experienced Family Law attorney to discuss your case in greater detail and learn all of your rights and options. Good luck.
Answered on Sep 14th, 2011 at 10:08 AM
If you are trying to work out an amicable or an agreed divorce, then, who files first, should have no impact upon the case. If you have a contesting divorce with children, and if the issues relating to children are going to be seriously fought, then, there may be some advantage to being the first to file. Being the first to file allows you, to a certain extent, to set the pace of the early portions of the case. That advantage tends to go away later in the case.
Answered on Sep 14th, 2011 at 9:03 AM
Family Law Attorney serving Woodland Hills, CA
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Law Office of Daniel B. Rubanowitz, APC
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There are a few advantages to filing first for divorce which include the following: 1) You establish the timing of getting the case started; 2) If you live in an area (i.e., jurisdiction) where more than one Courthouse can hear your case, you can "forum shop" to select the Court if you are the party who files and serves the appropriate documents first; and 3) At the time of trial, the party who files and serves first (i.e., the Petitioner) gets to put on his/her case first and make the last closing argument. Traditionally, lawyers and parties believed that if you were able to put your case on first, then the judicial officer might be persuaded in your favor before the other party even gets started. However, many family law attorneys believe that there is no longer an advantage to going first because the judicial officers hearing cases in Family Court are very well trained and generally do not make decisions until after all of the evidence is presented.
Answered on Sep 14th, 2011 at 8:40 AM
Glen Edward Ashman
There are some advantages to being the one to file, including the choice of venue, and framing the issues in the case.
Answered on Sep 14th, 2011 at 7:50 AM
4 Awards
There is normally no particular advantage to one spouse suing before another in an uncontested divorce case, but there are too many factors to consider to list here. Financial considerations such as use of the family home and access to credit cards and bank accounts may make it advantageous for one party to move quickly to get court orders. You should consult an attorney about the specific facts of your case.
Answered on Sep 14th, 2011 at 7:00 AM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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There is no advantage to being first to file. Financially as to the court filing fees, in Color the cheapest way is for the spouses to file as co-petitioners where there is only a single filing fee. Otherwise, the first to file pays the $230 filing fee and the second pays a $116 filing fee.
Answered on Sep 14th, 2011 at 6:23 AM
Alternative Dispute Resolution Attorney serving Ventura, CA
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Zahn Law Office
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In California, there is no advantage to filing first, provided that both parties are in the same county. If they are in different counties, then the advantage would be which county handles the case (though the laws remain the same).
Answered on Sep 14th, 2011 at 5:35 AM
General Civil Trial Practice Attorney serving Beaverton, OR
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Vincent J. Bernabei, LLC
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Yes. In a contested case, the first to file gets to present her case first and last.
Answered on Sep 14th, 2011 at 5:34 AM
Gary Moore
In a divorce you get what you get. A divorce can be based on "irreconcilable differences," without an explanation of what the differences are.
Answered on Sep 14th, 2011 at 5:30 AM