Should I File for Divorce First?

should I file for divorce first

When you are contemplating a divorce, you need to act with forethought and intention. You must consider a strategic approach to going through with the divorce. Timing is an issue, along with whether you are the petitioner or the respondent in the case. Many people wonder whether they can gain an advantage in a divorce case by being the first to file. While the facts and law of your case do not change, you may gain some tactical advantages by filing first. An experienced divorce attorney can work with you to devise the best legal strategy.

The hope is that you and your spouse are able to agree on divorce terms, and thus it would not matter as much who files first. If you already have a marital settlement agreement, filing the divorce petition itself would be more of a formality. If your divorce is contested, your lawyer will want to consider litigation strategy and tactics. And when litigation appears inevitable, you may want to consider filing for divorce first.

You cannot change the law or facts of your case; however, you can act tactically in order to give yourself any advantage possible. In any court case, there are a number of things you can do working within the law to put yourself in a better position to achieve your goals. While the law is paramount, tactics still matter.

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.

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 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.

Filing For Divorce First Can Allow You to Seek Temporary Orders

In a similar regard, the party making the initial filing would be the first one with the ability to request temporary orders from the court. You may need a temporary order for child support, custody, or even to prevent the other spouse from mishandling marital assets. 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.

A Divorce Attorney Can Put You in a Better Legal Position

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 a Pearland 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.

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