Family law clients considering a divorce often ask if there is any
benefit to being the first to file a petition for dissolution.
Depending on the circumstances, there may be some strategic advantages:
- Taking Control. The option of divorce usually
arises during a time of significant emotional and financial upheaval in a
marriage. Filing for divorce first may help a spouse regain a sense of
control over his or her life, and help establish boundaries in a
difficult relationship that is ending. - Choice of Jurisdiction. The person who files for
divorce first gets to choose the jurisdiction, which can be important if
the spouses are already separated and living in different locations. A
spouse can choose to file in the county where he or she lives, avoiding
the need to travel to where the other spouse lives – and this can save
both time and money. Also, different counties have different local
rules, some of which may be more favorable to a spouse who files the
divorce action. - Presentation of Evidence. The spouse who files the
divorce action is generally the first to be heard at court proceedings,
hearings, and mediations. This provides the opportunity to calmly and
reasonably present information to the court without being antagonistic
to the other spouse. In addition, the spouse who files first often is
given the opportunity to rebut the presentation made by the other
spouse. - Element of Surprise. The person who files for
divorce often has the element of surprise on his or her side. A
statutory restraining order is immediately imposed on the financial
resources of the marriage, preventing the other spouse from disposing of
assets or making extraordinary expenditures. This helps to ensure that
all assets are preserved and can be included in a divorce settlement or
judgment. - Status Quo. When children are involved, the parent
who files for divorce can also file a motion seeking the preservation
of the status quo as to the children’s residence, schedule, daily
routine, and parenting time until further order of the court. This
prevents the other spouse from making changes in the childrens’ lives
that may not be in their best interest. The court will determine what
the status quo is at the time that the motion is filed. - Withdrawal of Petition. The person who files for
divorce retains the option of withdrawing the petition if circumstances
change, such as if the spouses decide to try to reconcile, or if the
divorce becomes too great of a financial burden to manage at the time,
or if it causes too much of a negative impact on the children.
“This advisory is published by Bryant, Lovlien & Jarvis, PC
to provide a summary of significant developments to our clients and the
community. It is intended to be informational and does not constitute
legal advice regarding any specific situation. This material may also be
considered attorney advertising under court rules of certain
jurisdictions.”