does the person who files for divorce have an advantage

Should You File For Divorce First?

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When it comes to divorce, the proceedings often turn testy and contentious. The two sides argue and struggle and battle over every last detail. In antagonistic cases, you do whatever possible to secure an advantage. One common question often comes up: Should you file for divorce first?

A great deal of maneuvering and strategizing goes into the hope of winning the day. You may employ any number of tools in this quest. Ending a marriage is a process, often quite a long one.

Do You Have An Advantage if You File For Divorce First?

Some people believe if you file for divorce first, you win. Though it may seem like the smart move to be the first one out of the gate, that’s not always the case.

While it is true that spouse who files gets the ball rolling, that doesn’t always place you in an advantageous position.

Much depends on the individual situation and the specifics of a particular relationship. There are potential advantages and disadvantages to being the first to file for divorce.

Time For Preparation

If you file for divorce first, the biggest advantage is that you have time to prepare in advance. You won’t be taken off guard or surprised or blindsided. And you won’t subsequently need to scramble to deal with all of the logistical concerns that go into dissolving a marriage.

If you file for divorce first, you don’t have to rush to get all of your paperwork in order. A variety of financial and legal documents play important roles in the process. This allows you to collect and organize them all without the time crunch.

Divorce can also be expensive, but knowing you plan to file gives you time to make sure your finances are in order. You can save money to cover the standard lawyer fees, paperwork, and court appearances, but also unexpected costs.

Related Reading: Preparing for Your Initial Consultation With a Divorce Lawyer

Temporary Orders

Often in a divorce, there’s a need to address issues that can’t wait upfront, at least temporarily. Things like:

    • Who’s going to be in the house?
    • Where will the kids live?
    • Who’s responsible for the mortgage and other bills?

When you’re the petitioner on the case, you’re also the one filing the motion for temporary orders.

What that means is, you’ve defined the issues to be addressed in this motion. You served the other party, and the other party must respond.

Being the first to file for divorce may also prevent your spouse from attempting anything shady or underhanded. Waiting may allow the other party time to try to hide assets.

Even worse, in extreme cases, bank accounts have been emptied and the property sold. If you see a legitimate threat to your future finances, being the first to file may help protect what’s yours.

Related Reading: Digital Snooping and Divorce


When you file for divorce first, you’re more in control of where you file. Thus where the jurisdiction lies.

If you and your spouse live in the same place, this isn’t as big of an issue. But if you reside in different cities, counties, or even states, it can have a substantial impact.

For instance, where you live holds significant sway in the division of property. California is a community property state, which means marital assets are viewed differently than in Oregon, which practices equitable distribution.

Laws vary from state to state. Location influences child custody, child support, spousal support, and nearly every other facet of divorce.

Depending on your circumstances, the outcome of your case hinges heavily on jurisdiction. If you file for divorce first, you have more say over this element of your divorce.

Related Reading: How Does Adultery Affect Divorce In California?

First To Present

If you file for divorce first, you may also have the opportunity to present your case first. There are benefits and detriments to both sides of this, so this is one to carefully consider.

If you have a strong case and compelling evidence, presenting first may provide the chance to make a positive first impression. It may also offer a feeling of control that often eludes many in the divorce process.

On the other hand, when you present your case first, it tips your hand. You reveal any strategy you and your legal team have developed. This gives your soon-to-be-ex time to react and respond.

Ideally, by this point, you’ve worked up a sound legal plan. If you build your case on solid legal logic and rationality rather than emotional reactions and tricks, when you present shouldn’t matter all that much.

Related Reading: Is Summary Dissolution Right for Your Case?

So, Should You File For Divorce First?

Whether or not to file for divorce first is a big question. And a complicated one.

No one-size-fits-all solution covers every situation, and the answer varies from one case to another. All of the topics touched on above have two sides. Depending on the circumstances, the impact of each can be good, bad, or relatively minor.

It may benefit your case to take an active, assertive approach and file for divorce first. But if you can’t back it up, it probably isn’t the right choice.

If you have a strategy and game plan in place, by all means, go right ahead. But don’t do it just to be the one who files. There should be more to the decision. If you don’t have a clear follow-up plan, it likely won’t do much good.

Above all else, preparation is key.

Whether you file for divorce first or your spouse does, take the time and put in the work to solidify your case. Do your homework and hire the right divorce attorney for your needs. Collect and organize all of the appropriate documents and paperwork. Know what you need to do every step of the way.

In the eyes of the court, it doesn’t matter if you file for divorce first or not. As long as you have a sound strategy and you prepare for your day in court, you have an equal chance for an optimal outcome.

Related Reading: Steps To File For For Divorce

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