is there an advantage to filing first in divorce

Is There A Benefit To Filing for Divorce First?

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When it comes to divorce, it seems like everyone has advice. People come out of the woodwork to offer up their two cents, whether you ask for it or not. One piece of guidance frequently shared is that you should file for divorce first.

But the question remains: Is this sound counsel or does it do more harm than good?

Should You File For Divorce First?

Like with most legal matters, the answer isn’t black and white.

There’s no one-size-fits-all solution that works in every scenario. Each situation has its own unique set of variables, and what’s ideal in one case may be disastrous in another.

Advantages And Disadvantages

While the spouse who files for divorce first does get the ball rolling, that doesn’t always give you the lead, so to speak. Each option comes with its own positives and negatives.

Still, whether or not to file for divorce first is a question worth considering.

Time For Preparation and Strategy

Perhaps the biggest advantage when you file for divorce first is that it gives you time to prepare.

If you’re considering divorce, chances are your marriage is in rough seas. Still, if your spouse kicks off the process, it often comes as quite a shock.

If you file for divorce first, you avoid potential surprises. You won’t be blindsided or have to scramble to play catch up. It allows you the time and space to get all of your affairs in order.

While it’s possible to handle a divorce on your own (called pro se divorce), in most situations, it’s in your best interest to hire a divorce lawyer.

Perhaps you have a lot of shared assets to divide. In that case, maybe you enlist a financial expert’s assistance.

It often takes a while to line up the help you require. Whatever your needs, if you file for divorce first, you have the opportunity to assemble your team ahead of time.

Related Reading: Sweat Equity and Divorce Settlements

Filing For Temporary Orders

In the duration of a divorce, there are several matters you can’t wait to deal with.

When you file first, that means you’re the one filing for temporary orders. You get to define the issues to be addressed.

For example:

    • Where will the kids live?
    • Who pays the bills?
    • Do you split the mortgage if only one spouse remains in the home?
    • Who’s in charge of decision-making?

Depending on your situation, getting the drop may even prevent your spouse from attempting to hide assets or other shady doings. Hopefully, you don’t have to deal with that, but it happens.

Related Reading: What to Expect from Child Custody Hearings


From tax records to legal paperwork, a variety of documents figure into divorce. Again, going first gives you a chance to collect and organize in advance.

Since divorce tends to be rather pricey, you can save and make sure you can cover attorney fees, charges for filing paperwork, court costs, and any other expenses that arise. There are also always additional costs you don’t see coming.

Related Reading: How Long Does Divorce Take in Washington?

Establishing Jurisdiction

Laws about divorce, division of property, and child custody vary greatly from state to state, sometimes even county to county. As such, jurisdiction often plays a big role in the ultimate outcome.

When you file for divorce first, you have more control over where jurisdiction falls.

If you and your spouse live in the same place, the effect of filing for divorce first probably won’t have a substantial impact in this regard. But if you live in different cities, counties, or states, that’s another story.

One area you may benefit from this is the division of property. The difference in this realm swings wildly depending on where you live.

For instance, Washington is a community property state. This means the state splits assets in a different way than, say, Oregon, which follows an equitable distribution model. Though frequently subtle, these differences have a big financial impact.

Location also figures into child custody, and the presence of children drastically impacts jurisdiction. Thanks to the Uniform Child Custody Jurisdiction Act and similar measures, authority in custody cases relies more on the best interests of the child than where you reside.

Related Reading: How Does the Division of Property Work in Washington?

Present Your Case First

If you file for divorce first, you may get the chance to present your side of the argument first. While that sounds good on paper and can have advantages, it’s not always ideal.

Presenting your case before your spouse provides the opportunity to make a strong initial impression. Judges are human, and being the first person before the bench can have a lasting effect. Though if you get off on the wrong foot, that strong first impression may prove detrimental.

On the other side, going first also shows all your cards. You tip your hand and unveil your strategy to the opposition. Whatever you work on with your divorce lawyer, that’s all out in the open now, and the opposition has the chance to react and tailor their response.

Ideally, however, revealing your plan shouldn’t be a huge problem. If you build a strategy on a sound legal foundation rather than artifice, stunts, and emotion, you should be fine. If you have a strong case, when you present probably won’t be an issue.

Related Reading: Protecting Your Credit Score And Rebuilding Finances

Should You File For Divorce First?

Considering all of this, it’s time for the big question: should you file for divorce first?

It’s a complicated proposition with no simple answer. No two situations are ever the same, and depending on the specifics, being the first out of the gate can be positive, negative, or relatively neutral.

Sometimes taking an aggressive, confident approach benefits your case. If you have a plan and a strategy and are ready to go, by all means, file for divorce first.

That said, don’t file for divorce first just to be the one who lights the fuse. Being prepared is the most important part, and if you’re not ready, ease up on the gas.

Take the time to organize and build a strong case. Get all of your paperwork and documents together and in order.

Hire a divorce lawyer if you need one. Put in the time and legwork to determine what your case requires and take care of those concerns.

Once you handle all of the details, then you can file for divorce. From a legal perspective, it doesn’t matter who initiates the process. So long as you have a strong case and come well prepared, you have a chance at an optimal outcome no matter who was fastest out of the blocks.

Related Reading: Divorce Strategies to Know Before Filing

From The Radio

Our managing partner, Rick Jones, regularly appears on the Danny Bonaduce and Sarah Morning Show to answer listener questions.  On a recent episode, a caller posed a question on the topic of the day.

Listen Below:

Caller: “I’ve been told several times that whoever files first in a divorce has the upper hand, the distinct advantage, is that true?”

Rick: “The quick answer is no. Being the petitioner doesn’t change any of the formality. It doesn’t tell the court that you must be on the right side if you’re the one in there.

“But, here’s where the more complex and ‘realer’ answer comes. Often times in a divorce, there’s a little bit of an explosion. A need to address some issues at least on a temporary basis right now, the ones that can’t wait a year for that trial to occur.

“Things like:

  • Temporarily who’s going to be in the house?
  • Who are the kids going to be with?
  • Who’s responsible for the mortgage? 

“What happens is when you’re the petitioner on the case, you’re also the one filing the motion for temporary orders

“What that means is, you’ve defined the issues to be addressed in this motion. You served the other party, the other party gets to do a response. Tit for tat, then you get to do a reply.

So, you get first word and last word. And to me, if I’m an attorney in front of a court, I’d rather have the first and last word, right? So it’s not ‘a winner’ by nature, but at the same time I’d certainly rather be in that position.

A Related Question:

Danny: “On that ‘whoever’s first to file thing,’ thanks for straightening it out. What about the one I always hear: ‘Whoever leaves the house is never going to get it back?‘ Meaning if Amy and I ever get into a huge fight, being the gentleman that I am, I will go stay in a seedy motel and she can stay in the house.  She’s going to end up owning it because she stayed.”

Rick: “Well that happens all the time, too. We talk to people and say, ‘Don’t leave the house if you have any desire to contest for custody.’ Because obviously at that point, you’re out, she’s in, and more importantly, the kids are in.

“Now the house has two issues. One is the issue of residence. Once you’re out, you’re going to be out. 

“The second one is the one you hit which is ownership. Now the house is still just a piece of property, it has a dollar sign next to it in terms of equity. So it doesn’t necessarily mean you can’t get back in the house in terms of ownership, but you won’t temporarily, as a resident.

Related Reading: Moving Out During Divorce: What You Need to Know Before You Go

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