Should I File for Divorce First?
Making the tough decision to file for divorce can feel overwhelming, but that decision can be even more emotionally taxing when the choice is taken out of your own hands. You may be asking yourself whether it is better for you to file first for a divorce or if you should wait for your spouse to file. In Texas, it does not legally matter who files for divorce first. The person who files first, called the petitioner, does not get any preferential treatment compared to the person responding to the divorce petition, known as the respondent.
In Texas, it does not legally matter who files for divorce first. The person who files first, called the petitioner, does not get any preferential treatment compared to the person responding to the divorce petition, known as the respondent.
5 Advantages to Filing for Divorce First
Judges in Texas must consider both sides of a divorce fairly and equally. Texas is also a community property state, which means each spouse will receive roughly half of the value of the property acquired throughout the time the couple was married. Even though each party in a divorce proceeding is treated equally by the judge, there are some strategic advantages to filing for divorce first in Texas.
- You Set the Tone for the Divorce Process
- You Choose the County Where the Proceedings Will Take Place
- You Have More Time to Prepare with Your Attorney
- You Have the First Opportunity to Ask for Temporary Orders
- You May Go First at Hearings or Trial
1. You Set the Tone for the Divorce Process
As the person who files first, the petitioner gets to have a slight procedural advantage in the divorce.
They have the option to attempt to file for an uncontested divorce and can start the process off with amicable negotiations. The original divorce petition contains the petitioner’s statement about the reasons, or grounds, for the divorce. The allegations in the petition will be the first information about the case the court gets to see and provide the court with a first impression of the relationship that is ending.
2. You Choose the County Where the Proceedings Will Take Place
Filing For Divorce First Can Give You Some Level of Control
The spouse who files for divorce first will be the one who selects the venue, which is the court system in which the case is heard. In some cases, more than one venue may meet the legal requirements for handling the divorce. Each county in Texas has its own court system, with its own judges.
One spouse may believe that a certain venue is more advantageous for them. They may think that they will find a more favorable and receptive audience for their case in a certain jurisdiction. However, a court will not hear a case if it does not meet the legal requirements for venue. If the other spouse files first, and they have not selected the appropriate venue, your divorce lawyer can file a motion to transfer the case to a more suitable venue. If the other spouse lives far away from you, filing first could help you avoid having to travel long distances for court hearings and arguing your case in an inconvenient venue.
In addition, the spouse who filed for divorce may have slightly more control over the timing and events in the case. By filing the petition first, the other spouse becomes obligated to answer within a certain period of time, regardless of whether they were anticipating a divorce.
If you have been separated from your spouse and they have moved to a different part of Texas or outside the state, you can still bring the proceedings to the county where you live. This will make the entire divorce process much easier on you with regard to travel necessary for any courtroom proceedings. If you believe the county your spouse lives in would offer some type of advantage to you in the divorce proceedings, you can also choose to file for divorce there. By filing first for divorce, you have the option to decide what venue to select based on what’s best for you and your case.
3. You Have More Time to Prepare with Your Attorney
When filing for divorce first, you have more time to collect information on financial records, property information, communication records, and more your spouse may try to hide from you when they find out you are filing for divorce. You can strategize with your attorney and come up with the best plan of action when going through the divorce process.
Property division can be a heated process and your attorney will be able to guide you in finding accurate records of all financial assets that will be required for the divorce proceedings.
4. You Have the First Opportunity to Ask for Temporary Orders
If you file for divorce first, you are able to decide when the court will hear arguments on setting any necessary temporary orders.
Sometimes you may be in a situation in which you can no longer trust your spouse with property or money that belongs to the marriage, and filing first can give you some control over those assets.
You will be able to petition the court to prevent your spouse from making monetary or business decisions while the divorce is ongoing. Temporary orders can prevent them from liquidating assets, transferring property, or attempting to keep assets hidden or “protected” from the divorce process that should be considered community property. As the petitioner, you are also able to file a motion to prevent your spouse from taking your children out of the state.
If you are not the party who filed for divorce first, you cannot file a request for a temporary order until after you have responded to the initial divorce petition.
Once you file a request for a temporary order, the judge would set a hearing date. Temporary orders are usually considered time-sensitive, and the judge would not wait long to schedule the hearing.
5. You May Go First at Hearings or Trial
If you end up going to court during your divorce, as the petitioner, you will present your side of the story to the court first. This gives you the opportunity to frame your arguments and the chance to tell your side of the story without having to respond to the opposing side’s arguments. If litigation is expected, your attorney may advise you to file first.
What Do I Do If My Spouse Filed First?
If your spouse has already filed a petition for divorce, do not panic. The above are benefits to filing first but you still have the chance to argue your side of the case. This is where having an experienced divorce attorney will be incredibly helpful.
Regardless of any tactical advantages gained by filing first, the end result of your divorce depends more on the terms that you negotiate or that are ordered by the court. Even if the other spouse files first, it does not mean they will get their way or everything they want. If the facts and law are on your side, you will end up in the best position. Your divorce lawyer will develop the strongest arguments to persuade a judge if there are any disputes.
You should always consult with an experienced divorce lawyer to devise the most effective strategy for your case. In certain divorce cases, it may make sense to begin in court, even if you will eventually agree on divorce terms with your spouse. You may need the judge to rule on temporary issues in the case, so you’ll need to get your case on the court’s docket.
The party filing for divorce first may have the initial ability to make an impression on the judge in the case. Likely, the judge would read the petition filed by the petitioner first. They may have the ability to shape the issues for the judge’s consideration. However, family court judges are experienced jurists who consider all sides of a case. Simply filing first does not necessarily mean that the judge will be more likely to consider your point of view. What matters more is the quality of the filing. An experienced divorce attorney can help you present your best arguments to the court in the strongest way.
Once the Divorce Process Has Started, Parties Are on More Even Footing
Once you are a participant in the legal process, you have the right to file papers with the court too. Even if you were not the one to file for divorce first, you still have a voice in the process and the right to be heard. If the respondent files a motion in the case, the petitioner would be obligated to respond if they want the judge to consider their point of view.
The Pearland divorce lawyers at Terry & Roberts will work with you to ensure you receive your fair share of marital property and assets. When choosing representation, it is crucial to select a lawyer or law firm with extensive knowledge of Texas family law. Our Brazoria County divorce lawyers have extensive experience helping our clients find the best solutions for their families. For clear, caring, and practical legal guidance to enable you to do what’s best for your family, contact us today.