Does It Matter Who Files for Divorce First?

Whether it’s a good idea to file for divorce before your spouse does is a strategic decision, and one you might be able to avoid if you can file an uncontested divorce.

When it's time to end your marriage, does it matter who files for divorce first? It can: In some divorce cases, the non-moving spouse (the spouse who does not file for the divorce) might be at a disadvantage when it comes to deciding certain matters.

Why Being the First to File for Divorce Matters

To get a divorce started, one (or both—more on joint filing later) spouse must file a divorce petition with the court. The filing spouse is often called the "petitioner," and the non-filing spouse is called the "respondent."

If you know that there's no chance for reconciliation, filing first might give you some strategic advantages such as:

  • Choice of court location. As long as the petitioner follows state and local laws about where a divorce can be filed, the petitioner gets to choose the jurisdiction (location) for the divorce proceedings. Many states have some form of residency requirement to prevent either spouse from intentionally filing for divorce in a state or county that might favor that spouse more than the other. For example, in Michigan, the filing spouse must live in the state for at least 180 days and the county of filing for at least 10 days before the court can accept the divorce petition. (Mich. Comp. Laws § 552.9 (2021).) So, if your spouse lives 100 miles away and files first, you'll have to travel to your spouse's courthouse for all divorce-related matters, which will cost you more time and money than if you'd filed first in the court nearest you.
  • Control over the pace of the divorce. The spouse that files for divorce often has a bit more control over how fast the divorce progresses. By filing first, you've started the process at a point of your choosing, while your spouse has no choice but to respond on the court's timeline. Then, while your spouse is working on a response, you'll have the opportunity to plan your next move.
  • The chance to make the first impression. The initial divorce paperwork contains the petitioner's statement about the grounds (reasons) for the divorce. The allegations in the petition will be the first information about the case that the court sees—and when you file first, the ball is in your spouse's court to change the court's first impression.
  • The first opportunity to ask for temporary orders. The spouse who files first can ask the court for temporary orders before notifying the other spouse of the initial divorce filing. These orders might limit what each spouse can do with marital funds or property, protect one spouse from the other, award temporary child custody, or grant temporary child or spousal support. Although non-filing spouses will have the chance to respond to any requests for orders, their response must be filed before or at the same times as their response to the petition. Non-filing spouses can't request their own temporary orders until after they have filed their response to the petition.

Also, in many courts, the petitioner will be the first spouse to present their case at trial. Being first to present at trial isn't always an advantage, though: it gives the other side the opportunity to hear your arguments and plan out a response.

Does One Spouse Always File First?

Depending on your state's laws, you might be able to file a "joint" petition for divorce (some states call this an uncontested or collaborative divorce), which means that both spouses agree not only to the divorce but to all divorce-related issues that follow. The spouses write up a divorce settlement agreement, and file it with their petition. The uncontested process in many states is more streamlined than a contested divorce, saving time, money, and relationships.

Your divorce settlement agreement must include the specifics about:

  • the reason (grounds) for the divorce
  • each spouse's share of the court's filing fees
  • how you will divide your marital property and debts
  • whether one spouse will pay spousal support, and if so, the amount and length of the payments
  • which spouse will become the primary caregiver (custodial parent) for any minor children
  • a parenting time or visitation schedule for the non-custodial parent, and
  • the amount of child support the non-custodial parent will pay.

As long as both spouses agree to all the divorce terms in writing, the court will approve it in most states. When minor children are involved, the court might require the judge to review the terms more carefully before approval. Still, as long as the custody and support arrangements favor the children's best interests, the court will approve it.

If either spouse disagrees with any of the divorce terms, the case is no longer uncontested, and the couple will need to follow the state's procedure for filing a contested divorce.

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