Are There Any Advantages to Filing for Divorce First?


The ending of a marriage is not a winning or losing achievement for most people. For some spouses, though, who are convinced divorce is best for them, filing first for dissolution may be the best plan of action.

Depending on the circumstances, there may be certain legal, emotional, and practical advantages to filing for divorce before your husband or wife. By filing for divorce first, you can take the time to plan ahead of the event —including interviewing and selecting the right divorce lawyer to represent you. You also have the time to be psychologically and mentally prepared for the cost of divorce and the considerable change it will put you and your family through.

In some cases, it is conceivable that multiple counties or states could have jurisdiction over your divorce. Filing first may give you the power to decide. In general, the spouse filing first for divorce gets to choose the jurisdiction. This choice can be especially vital for couples already separated and living in different places, since divorce laws can differ greatly in different counties and states. By choosing the jurisdiction, you are not only able to pick the area that is most expedient for you, but the locality with the laws you find most advantageous.

In order to safeguard all assets destined to be part of the divorce judgment or settlement, a statutory restraining order is automatically put on all the financial resources of the marriage. Being first to file for divorce means having surprise on your side, preventing your spouse from making extraordinary expenditures, draining joint bank accounts, or disposing of assets beforehand.

By filing for divorce first, you also keep the option open of withdrawing the divorce petition should circumstances change. As the respondent, your spouse must simply follow and see the action through to the end.

Note, too, that a spouse presented with an unexpected divorce filing is not inescapably at a handicap. The automatic temporary injunction that comes into being after the divorce filing comes into play. Its presence was deliberately arranged to prevent spouses from taking actions that would take advantage of the other spouse and put them in a weaker position.

If it was your spouse who filed the divorce action, you still have the chance to file an answer to the petition, as well as a cross-petition for divorce. You will both have an ability to present your case to the court. The judge will consider the many different factors fairly and thoroughly before arriving at a final decision.

Of course, remember that absolutely no consideration will be given as to which spouse was first to file for divorce when you appear before the judge in regard to major issues such as child custody, child support, spousal support, and division of assets and liabilities.