Filing First In Divorce

One of the most common questions potential clients ask is should I file for divorce first or should I wait until my wife files? In general, the ultimate outcome of the case is not determined by who files first. A court will try and equitably divide the assets and debts no matter which side brings the case. Likewise, child custody and visitation issues are based on the child’s best interest, not who filed the Petition for Divorce. So, if the outcome is not greatly impacted by filing first, why does it matter who files? 

Of course, each case is unique but there are at least three good reasons to file first in most cases.

One, the party who files first sets the agenda in the case. At trial, the party who files the Petition (the “Petitioner”) gets to present his or her evidence first. As a result, they control the order the court considers the issues and they get the first opportunity to convince the court how to rule. The party who did not file the Petition (the “Respondent”) gets to present their evidence second. But the Petitioner then gets the opportunity to rebut. As a result, the Petitioner often gets to have the first and last word at trial. The court first learns about the case from the Petitioner so the issues the Petitioner feels most strongly about become the issues the court is most concerned about. Although this may not drastically alter the result (most divorce cases end in a split of assets that is relatively 50-50 between the parties) it does mean the Petitioner has the opportunity to influence how the assets are distributed. In other words, you may get the same dollar value worth of assets either way but the Petitioner is better able to influence the judge to award him or her their first choice of assets. For example, if the martial home has $50,000 worth of equity we assume each party will end up with around $25,000 when the case is finalized. The Petitioner has the first chance to convince the judge that he or she should get to keep the home and the Respondent should get his or her share of the proceeds as cash or other property. The big picture result is the same – each party gets $25,000 from the value of the home – but the specific outcome of the house may be drastically affected.

Two, the party who files the Petition has the opportunity to ask the court to grant temporary orders at the start of the case. These orders can be amended or revoked by the court while the case is still pending. But, the Petitioner can get the orders they want at the start. For example, the Petitioner can, and often does, ask for exclusive possession of the home and/or residential custody of the children. The Respondent may be served with the Divorce Petition and an order to immediately move out of the house at the same time. The Respondent can ask the court to amend the orders, and the court will usually hold a hearing within a short period of time, but until the hearing the orders remain in place. In fact, many people are so concerned their spouse will obtain such an order that they go ahead and file a basic Petition first and do not seek orders for themselves. They simply want to win the “race to the courthouse” to ensure they will not be evicted without any advance notice. Three, there can be a psychological benefit to filing and controlling the case. The Respondent often feels like they are always on defense, responding to the moves made by the Petitioner.

Even though the outcome may not change if you file first, the perception of the process can be very different depending on whether you are the Petitioner or the Respondent. Quite often one spouse does not want to file the Petition for Divorce because they are afraid this will make it look like they are giving up on the marriage or their family. A very common concern is that the children will think the divorce is their fault if they file the Petition. If your spouse is going to blame you for filing the Petition they will probably still blame you if you do not file the Petition. It is just as easy to tell people you caused the divorce because you never listened or caused arguments or stayed out too late as it is to say the divorce is your fault because you filed the Petition.

Furthermore, your children will usually remember how you handle the process, not who initiated the process. Finally, if you later decide the filing was unnecessary you can always dismiss the case. Over the course of any marriage there will be difficult spots. Just because there are difficulties does not mean one side needs to file a Petition for Divorce. But, if the relationship has deteriorated significantly and you believe your spouse is about to file, it may be a good idea to consult a domestic relations attorney and consider filing first. Filing first may not change the ultimate outcome but it can reduce your short term stress. In my experience as a domestic relations attorney I have worked with several clients who were upset they did not file first; I have never worked with a client who was upset they did.

Ken McRae is a Cordell & Cordell, P.C. attorney practicing exclusively in family law in the firm’s Overland Park, Kansas office.

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