Does it matter which spouse files for divorce? In a strict, legal sense, not really. However, being the person who files first, and conversely, being the spouse who is served, has both advantages and disadvantages when it comes to getting what you want from the separation.

Does It Matter Who Files for Divorce First?

There are definite benefits to filing for divorce first. The court does not really concern itself with who filed the application, so it won’t make much direct difference to the judge’s decision. The timing of filing, and whether you are serving or being served, is more about whether or not you have the time to plan the divorce proceedings and choose the location of the proceedings. Both of these will give you an advantage as you prepare for your case.

Advantages of Filing For Divorce First,

If you file first, you can decide in which county, or even state, to file the papers. This can give you a kind of “home court advantage,” as it were. You also get to choose when to file, and you set the process in motion. The other party is then in the position of having to react to your actions. It is best always to have a solid plan and have considered all your options before rushing to file paperwork. By filing first, you get the first choice when it comes to your legal aid, and you give yourself time to find additional support and gather all the necessary documentation before you make your move.

Bearing these matters in mind, there are some specific situations in which it is advantageous to file first. If you and your spouse live in different cities, counties, or even states, there is the question of competing jurisdictions. If you file first, the case will be litigated in your home territory, rather than your spouse’s. You then don’t have to worry about travel costs and other inconveniences involved with traveling to present your case in a distant court.

In addition, if you think there is a risk of your spouse running away with money and other assets, it is best for you to file first. Once you have filed your petition and it has been served to the other party, automatic temporary restraining orders go into effect. Neither party can transfer or encumber assets once this is done. These orders are essential for the protection of assets, especially if assets need to be hidden from the other spouse.

Additional benefits include having first choice for professional help, such as lawyers; time to find additional support if you need it; the opportunity to gather the necessary documentation; and the chance to get yourself into an advantageous financial position.

Disadvantages of Filing For Divorce First

There are also some disadvantages to filing first. For one thing, you may get stuck with the filing fee. Filing fees range from $100 to $450, which is probably not much in the grand scheme of the divorce proceedings. However, it is still a cost, and you run the risk of having to pay all of it if you file first. That being said, it is possible to have the fee waived, depending on the circumstances, or split the cost with your spouse.

Another thing to consider is that filing first may reduce the possibility of reasonable and productive communication. In some cases, surprising your spouse with divorce papers might be the only option, especially where abuse is involved. However, if you and your spouse are still on reasonable terms, it is better to have that difficult conversation first and move forward with the consent of both parties. It will make the split less acrimonious and enable a more beneficial and reasonable settlement.

Always Get a Lawyer

Westover Law is a leading firm of family lawyers in southern California. Our divorce lawyers will help you through your divorce process, show you how to become better at arguing, and, of course, argue on your behalf. Book a consultation if you need assistance with your divorce case.