Does it matter who files for divorce first?

If you file for divorce first, it is likely that if the outstanding issues in your case were to be decided at a trial (by the judge), you would be the first to present your case, which means that you have to start preparing for court way ahead of the other side time wise. The other party gets to hear testimony and your legal theories before they have to present their side. This legal strategy is best discussed with your attorney as there are pros and cons to consider.

Benefits of Filing for Divorce First

To file for divorce before your spouse may allow you to have more control over the situation from the beginning and provide some strategic options. One benefit is that if the specific facts of your case warrant, you could have the choice of which county—and sometimes which province — to file the paperwork. However, you cannot just file in any location as each state has different requirements that you must meet to be eligible to file for divorce in that jurisdiction. You will also get to choose when to file, which will then start the clock in the process.

If you are the first to file, you will have the opportunity to complete your due diligence without the burden of time constraints. Once the lawsuit begins, the court will set dates for discovery timelines, hearings, and deadlines for mediation before trial. By filing first, you will be in a better position to predict when those dates will happen. Once you have a sense of the timeline, you can make certain preparations surrounding financials and manage other areas of your life. You will be a step ahead regarding scheduling issues, whether that be work-related or other family obligations.

Disadvantages of Filing for Divorce First

As the filing spouse, you file the first document, the Divorce Application. You must state all the specifications of what you want in the divorce papers. However, now you have shown your hand, and your spouse has a list of your demands. Did you ask for enough, or did you ask for too much? Divorce is a negotiation, so you will typically ask for more than you want. However, asking for too much may cause your spouse to overreact, which can cause your spouse to dig in and refuse to negotiate.

Filing first can prevent more productive communication. When you file for divorce first, you must serve your spouse with the Divorce Application  To properly serve your spouse, you will need a process server. Process servers cost around a hundred dollars. As your spouse does not need to serve their response to your Complaint, they only need to mail it back, which will mean that you might get stuck paying for the filing fee.

Can Both Spouses File for Divorce?

Only one spouse can file for divorce first. They are referred to as the plaintiff, while the other spouse is the defendant. Whether you are the plaintiff or the defendant is not as critical as getting a solid team together or doing the proper research into the divorce process yourself. Having a strategy in place can sometimes be a lifesaver, as every divorce situation is unique, depending on the specific factors involved. While it is generally advantageous to file for divorce first, divorce attorneys can review the facts of your situation to determine your next best step.

If you want to file for divorce first, contact SplitEasy to help with your forms today.