Who Files for Divorce First?

Who Files for Divorce First?
Either spouse can file for divorce first. The spouse that files for divorce first does so because he/she wants to gain one or more of the following strategic advantages:

  1. Gets to choose the court location.
  2. Gets to plans ahead as the other party responds to earlier court notices.
  3. Makes the first impression.
  4. Becomes the first to obtain temporary orders.
  5. Gets a psychological boost by filing first.

Here are the advantages and disadvantages of being the first mover to file for a divorce:

Choice of Jurisdiction

Sometimes, spouses end up living in different states. When it comes time to divorce, the different divorce laws in the states may advantage one spouse and disadvantage the other. So, when a separation occurs, a spouse may want to file for a divorce in the state where he/she was domiciled – for example, to avoid travel or maybe for some other advantage, such as having family or friends for emotional support or having solid legal contacts.

However, he/she must comply with the residency requirements of that state before filing for a divorce. For example, the state of Utah states that a spouse can file for divorce only after 90 days of residency. On the other hand, if the case involves child custody issues, the state will address them only if the children have been in Utah for at least 6 months before the date on which the divorce was filed.

Planning Ahead

The spouse who plans ahead, the spouse who is the aggrieved party, or the one who likes to be in control of the divorce proceedings is often the one who files for divorce first. This helps him/her to set the narrative, assemble the legal team in advance, choose the law, collect all documents required to prove the case, and control the pace of the proceedings. The first mover gets the advantage to plan the next move even as the other party responds to his/her earlier moves.

Know that as per our experience, just 2–3% of divorce cases in Utah go to trial.

First Impressions

The first mover gets the opportunity to create the first impression and give the perception that he/she was the aggrieved spouse. The court scrutinizes the first mover’s allegations, and that sets the narrative. The other party spends considerable time and effort in disproving the allegations, as the first mover makes his/her next move.

Priority in Obtaining Temporary Orders

The spouse who files for divorce first gets the advantage of asking for temporary orders before the other spouse even knows that a divorce has been filed. Temporary orders set limits on what each spouse can do with important matters like the sale of the marital home or other valuable assets, child support, child custody, health insurance, and more.

The person who has not filed for divorce first has got to first respond to his/her spouse’s petition before filing for any temporary orders.

Psychological Boost

Some spouses, especially those who are not at fault, get a psychological boost in filing first.

However, people who file for divorce first also face the following disadvantages:

Adequate Time to Respond

Once the other party receives the notice, he/she knows exactly what his spouse wants. An effective counter can be planned and executed by the other party in many cases.

Higher Cost

The first filer usually has to spend more money on attorney consultation fees, filing fees, investigation fees (if warranted). Usually, about 98% of divorce cases in America are resolved before the case goes to trial. These expenses could turn out to be redundant and money wasted if both spouses come to an agreement in the middle of proceedings.

Slim Chances of Reconciliation

A wave of resentment and animosity may get triggered in the other spouse when he/she receives a notice of divorce. Anger and hatred can build up to a new high, killing any chance of reconciliation.

Therefore, filing first depends on the extremity and circumstances of the case, and all parties should consider taking an experienced divorce attorney’s advice before filing for divorce.

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About the Author: Marco Brown
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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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