Does it Matter Who Files For Divorce First in California?
Spouses facing divorce face countless difficult decisions throughout the process. One of the decisions many spouses struggle with is when, or if, to actually file for divorce. Many spouses are hesitant to be the first one to file for divorce. Some are unsure about whether divorce is really the answer, others wonder if they are being too hasty, and still others just don’t know how to proceed. There are articles all over the place claiming that it doesn’t matter who files first, and an equal number of articles out there spouting about the benefits of filing first. So does it matter?
Like so many other questions dealing with California family law, the answer is that it depends. It can matter who files first, but it doesn’t always.
The Possible Advantages of Filing for Divorce First
In some circumstances, being the first to file for divorce can be beneficial. This is largely dependent on how amicable or contentious the break up is, but other things like the geographical distance between the parties, the parties’ respective incomes, and their respective access to funds can be considerations as well.
Here is a non-exhaustive list of possible benefits of filing for divorce first:
- Choosing Which County to File in: The spouse who files for divorce first (referred to as the Petitioner) chooses the venue in which the divorce will be litigated. In situations where spouses have lived apart from each other for a substantial period of time, possibly great distances from each other, filing the divorce petition first can prevent having to conduct matters related to the divorce far away from where a person lives. Many states have different laws relating to spousal support, child support, and property division, so this can be important in certain circumstances.
- Deciding Timeframe of the Divorce: The Petitioner generally controls how fast the proceedings move. This is especially true if the responding spouse does not file a Response within 30 days of being served with the Petition, because the court can enter a default against the responding party and proceed without him/her.
- Emotional Preparation [Time to Plan]: The Petitioner is able to take their time to meet with various different family law attorneys, locate the appropriate financial documentation relating to the couple’s assets and debts, and emotionally prepare for the impending divorce proceedings. The responding spouse (referred to as the Respondent), has only 30 days from the date he/she is served with the Petition to find an attorney, compile all financial documentation, emotionally prepare for the divorce proceedings, and file and serve their Response to the Petition.
- Going First at Hearings and Trial: If the matter should go to a hearing or trial, the Petitioner usually presents his/her case first. This can actually be a benefit or a detriment, as having the court hear his/her side of the story first can be beneficial, but the Respondent also has the opportunity to adjust his/her case strategy accordingly.
The Possible Disadvantages of Filing for Divorce First
Along with possible advantages, being the first to file for divorce can come with some disadvantages as well. Accordingly, here is a non-exhaustive list of possible disadvantages of filing for divorce first:
- Crush all Hope of Reconciling: If there is any talk of reconciliation for the couple, the filing of the Divorce Petition is a pretty effective way to end it.
- Payment of Initial Filing Fee: Unless the Petitioner qualifies for a fee waiver, he/she will always have to pay the initial filing fee to the court ($435-$450) when he/she files the initial Divorce Petition. The Respondent may be able to avoid paying his/her initial filing fee if the parties are able to come to a full Marital Settlement Agreement.
- Showing Your Hand: The Petitioner oftentimes includes a proposed division of community assets and debts in the Petition, tipping the Respondent off to all the Petitioner’s demands.
While there are possible advantages and disadvantages to filing for divorce first in California, generally, the biggest impact it has on the case is which side of counsel table you sit on at the hearing.
Spouses who feel their marriages are coming to an end should speak with a skilled divorce attorney who can discuss their specific situations with them and help them decide the best way to move forward.