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Does It Matter Who Files for Divorce First?

Filing for divorce is a gut-wrenching and emotional decision. But it’s also a strategic one. By filing for divorce first, you may have certain advantages, like the court location and the pace of the proceedings. 

What does it mean to “file” for divorce?

To file for divorce is to formally initiate the legal process of ending your marriage. Before filing for divorce, you may have already separated from your spouse and decided that reconciliation is not possible. At this point, one of you will file for divorce to formally start the legal process of dissolving your marriage.

Your job as the Petitioner

If you’re the one filing, you’re called the Petitioner because you’re petitioning the court to end your marriage. As the Petitioner, you have some paperwork to complete on the front end. With your Petition for divorce, you must include the following:

  • Your spouse’s name and address
  • The date of your marriage and separation
  • Names and dates of birth of any minor children
  • The grounds for your divorce case
  • Whether you are requesting child support, child custody, or alimony
  • How you suggest splitting your marital property

Once you’ve completed these divorce papers, you must file them with the court and serve a copy on your spouse. Your spouse is called the Respondent because they have time to respond to your Petition before the court takes any action. Even if your spouse agrees that divorce is the next step, it’s still your job to serve the Petition for divorce on your spouse and give them an opportunity to respond.

Are there advantages to being the Petitioner?

Let’s be crystal clear about one thing: Filing first doesn’t give you more rights. You may, however, secure a few benefits.

  • You have time to process what’s happening. Even if you know dissolution of marriage is the right decision, that doesn’t make it an easy one. Divorce is hard, even in the best circumstances. Having some time to come to terms with your decision rather than having it sprung on you as the Respondent may help you be more clear-headed and thoughtful about your upcoming decisions.

  • You have more time to get legal advice. While your spouse will be provided time to respond to the Petition and to find their own divorce attorney, as the Petitioner, you can take a more methodical and even-tempered approach to finding the right legal advisor. You can also use the time to find yourself the mental health support needed to get through this endeavor.

  • You may ask for temporary orders before your spouse knows about the divorce. In some cases, you may want to ask the court to limit the use of marital bank accounts, grant temporary child support, or even prevent your spouse from seeing you or your children in the interest of safety. A temporary court order lets you make your case about why the court should grant your request without hearing from your spouse. Even if the court grants a temporary order, your spouse will have the opportunity to respond and have the temporary order rescinded as soon as the divorce Petition has been served on them.

  • You can better manage the pace of the divorce process. Once you file for divorce and serve your spouse, you have to wait a certain amount of time for your spouse to respond to the Petition. But you’re able to start the divorce process at your discretion, in the court location you’ve chosen. Your spouse simply has to respond within the timeline provided, usually around one month.

  • The court hears your side first. When you file a Petition for dissolution of marriage, you’re explaining to the court why your divorce should be granted. You’re also providing it in your own words. The first impression the court gets of your marriage will be the impression you provide them.

  • You get to choose the court location. As long as you follow the rules and residency requirements for filing in your state, you can choose the location for your divorce case to be processed. Many states, for example, allow residents to Petition for divorce in any county in the state. So if you have moved to a new county after separating from your spouse, you can Petition for divorce in your new county, even if your spouse still resides in the county where you lived during your marriage. 

Can my spouse and I file for divorce together? (Joint filing)

In cases where you and your spouse are amicable and both agree divorce is the right conclusion to your marriage, filing jointly is an option.

Called an uncontested divorce, filing jointly means that you and your spouse have already worked out the details of your divorce. In other words, there’s no battle for the court to decide, so you don’t need any of the advantages listed above. You and your spouse are communicating amicably and working together to end your marriage.

To file jointly, certain requirements must be met:

  • You have no minor children
  • You have no major assets or liabilities besides a marital home
  • You agree how to split all of your assets and liabilities

Because you and your spouse agree on everything, the court will need to spend little time worrying about whether your divorce is equitable. Judges have certain laws they must follow, and one is to make sure each divorcing spouse isn’t getting less than what they should in the terms of the final divorce decree. When you’ve already worked out the details, courts assume ‌you accept the division of assets and liabilities. 

When you file jointly, in some states you can also file a summary divorce. This is a faster and less-expensive process. You can also save time and money on serving your spouse because you’ve filed jointly.

How can we work through issues to file an uncontested divorce?

If filing jointly appeals to you, read on. As mentioned, before you can file an uncontested divorce, you and your spouse must agree on all divorce terms. Not even one item should be left for the court to decide. 

So even if your lives are drifting apart, it can benefit both of you to work amicably together to resolve the distribution of assets and liabilities. 

Using mediation for your divorce

Many couples in this situation find mediation helpful. When you go to mediation, you and your spouse sit with a mediator whose job is to help you resolve your disputes. A mediator can help you come to a suitable resolution about outstanding items that must be specified in your final decree, such as spousal support, child support, child custody, division of property, and division of liabilities. 

You can even come to terms on the division of retirement accounts. Using a qualified domestic relations order (QDRO), you and your spouse can divide your retirement accounts without damaging any tax-protected assets or paying high fees to distribute funds early.

Mediation isn’t a great solution in some cases, especially those involving abuse and neglect. But for many other situations, you may find mediation helpful in qualifying for an uncontested divorce.

Hello Divorce helps with all kinds of dissolution of marriage filings, including uncontested divorces. If you want to see how we can simplify your uncontested divorce process, check out the plans on our web page. If your issues are more complicated than that, schedule your free 15-minute call and find out about our a la carte attorney consults.