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Divorce: Does It Matter Who Files First?

One of the most common questions I’m asked in divorce consultations is, “Does it matter who files first?” I was looking at a popular website where people can ask attorneys questions, and this question was asked. Four lawyers responded to the question. Much to my surprise, three out of four responded by stating that it generally does not matter. The fourth said it was a “matter of strategy and personal opinion”.

As a general rule, you should be the first to file. Of course, as with any general rule, there are exceptions. In this blog, I’ll address why you should be the first to file for divorce. Then I’ll address reasons you may want to wait.

Why You Should be the First to File for Divorce

  1. Get Your Ducks in a Row

  • Being first to file allows you time to prepare yourself for the upcoming litigation, financially and emotionally.
  • Do your own investigation. It’s shocking how many of my clients have limited or no information about the finances. Take the time to educate yourself about what’s at stake. Look through your filing cabinet and monitor the incoming mail.
  • Locating and copying financial records can take a considerable amount of time. If you wait too long to get yourself prepared, your spouse is liable to limit your access to information.
  1. May Prevent “Dirty Tricks” by Your Spouse

  • One dirty trick I see from time-to-time is a spouse attempting to conflict out the best attorneys in the area. If an attorney-client relationship is established between your spouse and a lawyer, that lawyer cannot represent you in your divorce. An attorney-client relationship is established at an initial consultation. Your spouse doesn’t even have to hire the lawyer. Your husband or wife can meet each of the best lawyers in town for a quick consultation and limit who you can hire.
  • Filing first may also prevent your husband or wife from hiding assets. Most counties in the DFW area have standing orders that prohibit this type of behavior. The standing order is binding on your spouse and may help guard against these types of underhanded tactics (as well as others). The sooner you file, the sooner there are consequences for these types of acts.
  1. Be First to the Courthouse

  • In most contentious cases, you will need to request temporary orders. Temporary orders establish the rights and duties of spouses going through a divorce. For instance, temporary orders often dictate who gets to stay in the house and who the kids live with primarily.
  • Typically, the temporary orders hearing will be set within two to four weeks from the date that the divorce is filed. Imagine being served with divorce papers and having to find a lawyer and get ready for a hearing two weeks from now. And that’s assuming you’re served promptly. I’ve had many clients call me after being serve a day or two before the hearing. If you’re the first to file, you’ll be ready for the hearing.
  1. You get to Present Your Evidence First (and Last)

  • If you file first, you get to present your evidence first in both the temporary orders hearing and the trial. This is extremely important. In psychology, there is a bias called primacy. This means that people tend to find what they hear first more credible. If the judge gets to hear your side first that could be an extremely important advantage in a case involving he-said-she-said type issues.
  • As the petitioner, you will also get to provide evidence last, known as rebuttal evidence. The way any trial or hearing works is the petitioner (or movant) puts on his or her evidence first. Then the respondent puts on his/her evidence. Then the petitioner (or movant) puts on rebuttal evidence. There is an additional bias call recency, which is a bias toward the most recent thing heard. I’m sure you can see how that would likewise be an advantage.

Why You Might Want to Wait for Your Spouse to File

Cost is often a consideration in letting your spouse file first. The spouse who files first must pay the initial filing fee which is typically between $250 and $300. Also, the petitioner’s attorney is usually responsible for drafting the final decree which can take a substantial amount of time. If you are paying your attorney on an hourly basis, the cost can quickly mount.

Unless your divorce is amicable or uncontested, the cost is not a compelling reason to wait. The filing fee is a one time cost. And when compared to the total cost of the divorce, it’s a nominal fee. Some lawyers will breeze through the decree leaving out important provisions. Other less scrupulous attorneys will try to include provisions that benefit only their clients at the expense of my client. So even though I didn’t draft the decree, I may end up spending hours filing holes in the decree or finding and correcting underhanded terms. I prefer to take control and draft the decree myself.

There certainly are reasons to wait that are a matter of strategy. For me, they usually involve fault in the breakup of the marriage (e.g., adultery) or disparities in earning power (e.g., a stay-at-home mom).

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