Who Should File for Divorce First

There are times in an unhappy marriage when both spouses may feel that a divorce is in the near future. If you are in this situation, you could be wondering, “Should I file for divorce first? Can I get a head start?”

Does it matter? Legally, no, it does not matter who files for divorce first. However, in this article, we will discuss some of the potential legal and personal benefits of being the first to file for divorce

The Difference Between a Petitioner and a Respondent

The Centers for Disease Control and Prevention (CDC) reported there were over 689,000 divorces in the US in 2021. The divorce process begins when one mate files divorce paperwork. 

In a divorce, there is a petitioner and a respondent:

  • Petitioner: Simply put, the petitioner is the person who files for the divorce, thereby starting the legal process
  • Respondent: The respondent is the one who receives the divorce papers from his or her spouse and must either agree to the divorce or contest it

The law does not grant any special privileges to the spouse who files for divorce first. The legal terms “petitioner” and “respondent” are of no matter; these are only used to make it clear which person filed for the divorce. 

Advantages of Filing for Divorce First

While there can be some benefits of being the side filing first for a divorce, it is important to remember that the court does not favor one party over another based on who filed first. Regardless of who initiated the proceedings, judges in Utah must consider both sides of a divorce fairly and equally. 

The following are some possible advantages of being the one to initiate divorce proceedings. 

Control over the tone and timing

As the filing spouse, you have the option of filing for an uncontested, agreeable divorce. This can start the proceedings off in an amicable manner, setting the tone for an uncontested divorce. 

When you file first, you also have some control over the pace of the divorce. You have dictated when the divorce proceedings will begin and now your spouse will need to respond according to the court’s timeline. 

Choice of filing location

By filing first, you have the choice of county court location where you would like to file the divorce. The county where the divorce is first filed is the same place where the divorce process will continue. 

If you and your spouse reside in different areas, it could be helpful to file in the county where you live so you do not have to travel to your spouse’s area for court proceedings. However, if you think that the county where your spouse resides would offer some sort of advantage to you in the divorce process, then you may decide to file for divorce there. 

Different areas have different rules regarding child support, child custody, and the division of marital assets. It is in your best interests to look into the laws of both counties before filing, to first see which one may be more beneficial to you. 

Protect your financial assets

If you were the one preparing for the divorce, you have time to be financially prepared. You may choose to set aside money for legal fees, bills, and other expenses you might face when you separate. It may be a good idea to get a credit card in your name before filing since it may be more difficult to do so later on. 

Additionally, by filing first, you have time to assess your assets and debts and begin deciding how you want the marital property division done. 

Some spouses may try to hide marital funds and financial assets when they know that a divorce is coming. By speaking with an attorney and filing first, you can strategize and find ways to protect yourself from becoming a financial victim. 

First opportunity to request temporary orders

The person who is the filing spouse has the first opportunity to request temporary orders while the divorce is pending. You may even be able to make requests for temporary orders before your spouse is notified that you filed for divorce. 

The following are some issues that temporary orders may address:

  • Child custody and visitation
  • Child support
  • Protection from your spouse
  • Alimony
  • Possession of the marital home 
  • Health insurance
  • Possession of vehicles

Non-filing spouses can also request temporary orders, but only after they have officially responded to the divorce petition. 

Withdrawal of petition

The person who files for divorce first is also allowed the right to file for withdrawal of the petition. 

This happens in some situations when a person files and then realizes that it is not the right time to file for divorce because of the children, a serious illness in the family, or some other reason. Perhaps you and your spouse decide to try to work on your marriage instead of going through the stress of a divorce. 

First choice of divorce attorneys

The spouse who files for divorce first will likely have the first pick of divorce lawyers. It is a conflict of interest for a divorce attorney to represent your spouse if the attorney has already consulted you. 

Filing for divorce first gives you the opportunity to pick the right attorney in the area to handle your case. This is advantageous especially if you live in a smaller area where there are not many divorce lawyers to choose from. 

Having a knowledgeable and experienced lawyer can make a huge difference in the outcome of divorce cases, and there are strategic advantages to having your first pick of attorneys. 

More time to prepare with your attorney

Filing for divorce first allows you time to collect any documentation or evidence you may need for the proceedings. If there is a chance your spouse may try to hide this information from you, taking the initiative to file gives you a chance to gather everything first and put it in a secure location. 

Evidence needed could include:

  • Mortgage statements
  • Property information
  • Bank account statements
  • Communication records
  • Titles of ownership
  • Proof of insurance

You may want to make copies of these documents and leave them with your attorney so you know they will be in a safe place where they can’t be destroyed. 

The division of assets in a divorce can be a heated process. Filing first will give you time to strategize with your lawyer and come up with the best possible plan of action.

Emotional support for you and your children

Going through a divorce is a stressful and complicated time. Filing for divorce first can help you feel as though you have control over the situation and the ways you want to change your life.

Since divorce is such an overwhelming time in a person’s life, you may choose to hire professionals to support you. These may include therapists, financial planners, or forensic accountants. Planning ahead allows you to have this support lined up before you file the divorce paperwork and the stress of the divorce proceedings begins.

If you are a parent, you are likely concerned about how the divorce will affect your children. In preparation for the divorce, you may set aside extra time to spend with your kids to give them the support they need. You may also search for skilled child therapists to help them adjust to the changes during this trying time. 

First to present in court

Another advantage of filing for divorce first is that, if your case goes to court, you will be the first to present your side of the story at the trial. 

This allows you to calmly share your experiences and evidence in court without having to immediately counter what your spouse says. After your spouse presents his or her side of the case, you will then be given a chance to refute any misinformation or statements. 

If litigation is expected in your divorce case, your attorney may advise you to file first. 

Disadvantages of Filing for Divorce First

While some people feel that it is best to be the one to file for divorce first, there are some disadvantages to keep in mind as well. 

Your spouse knows your demands

While it may seem positive that the other spouse will know your demands and that you have set the tone of the divorce, some may see this as giving the other party an advantage. And true, since your spouse now knows what you want out of the divorce, your initiative gives him or her time to prepare a defense. 

Difference in legal fees

Both parties will be required to pay legal fees to begin a divorce, but the petitioner will often pay more. These fees might include the cost to serve your spouse divorce papers, filing fees, and additional attorney’s fees. The exact amount will depend on the county in which the divorce is filed. 

Does the Spouse Who Filed for Divorce First Get Custody of the Children?

No. When it comes to child custody, it does not make a difference which spouse filed for divorce first. Custody does not automatically default to the one who first requested the divorce, nor is it influenced by taking initiative to file first. 

The judge will analyze various factors about both parents when determining temporary custody. A few things the courts may take into consideration include the parent’s emotional and physical capacity to care for the child, whether a parent has a history of domestic violence, and the wishes of the child. 

What Should I Do If My Spouse Filed for Divorce First?

If your spouse has already filed for divorce first, do not panic. Hire a divorce attorney as soon as you can after being notified of the divorce.

A divorce lawyer can help you respond to the divorce petition, offer divorce advice throughout the entire divorce process, and guide you through the division of assets. It is especially important to hire a lawyer if you have children since the judge may rule who has temporary custody in the meantime. 

Should I Tell My Spouse I Filed for Divorce?

After you file for divorce, the other party will be served papers and informed of the pending divorce. Whether or not you personally tell your spouse about the divorce beforehand is up to you. 

You can tell your spouse right away or you can wait for the papers to be served. However, if you are concerned that your spouse will be so angry that your safety may be in danger, you might prefer to let things unfold rather than tell your spouse in person. 

The Divorce Attorneys at Brown Family Law Are Here to Help

In short, the negligible legal consequences mean that it does not matter who filed for divorce first. However, there are advantages and disadvantages to being the initiating party. After considering the pros and cons, you need to decide which is the best decision for you personally. 

If you might file for divorce first, you should contact an experienced divorce attorney who can represent you and make your best interests a priority. The lawyers of Brown Family Law serving Utah will gladly answer any questions you have, and we can represent you through every step of the divorce process once we take on your case.

Schedule a case consultation with a member of our legal team today. Our lawyers want to remove any fear you are having about your case, whether a potential contested or uncontested divorce, so we can make things as easy as possible for you. Call us at 801-685-9999 or complete the contact form


Published On: September 27th, 2023Categories: For AttorneysComments Off on Who Should File for Divorce First
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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