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.
Get Your Ducks in a Row
May Prevent “Dirty Tricks” by Your Spouse
Be First to the Courthouse
You get to Present Your Evidence First (and Last)
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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