Why Who Files For Divorce First Matters


In a divorce or family law case, does it matter who files first?

When I first meet with a potential new client in my office, one of the first questions that usually come out of their mouth is whether they should be the one to file first. It’s a very important question because a lot of people that are contemplating going through the process of divorce or any kind of a family law matter really, are looking at it from the standpoint of:

  • Do I really want to be the first to cause the inevitable trauma to the family or kids?
  • If I file first, won’t it look like I’m the one that’s at fault?
  • Am I ready for this?

As you might expect, there are a number of reasons that many of us would be required to file first – those issues being, harm to the kids, the spouse and/or the community estate. But, for many of us – it’s just a question of time.

In our first meeting, one of the things that that I usually discuss is whether or not the client has been able to be open up to their spouse about their feelings and the contemplation divorce or, if it’s a modification or other family law matter – have they discussed it with the other parent? This helps us to decide how we should process the case. For example, if there has been no discussion between the spouses or the parents – would it be fruitful to have one? In some cases, the answer would be a resounding no; but, in others, it helps to set the stage for the case. If you believe that there are issues that can be resolved outside of the courtroom – the way you start your family law matter is worthy of serious consideration. It also clears up the issue of fault when and if you decide to file first because you made an attempt to open up the dialogue of possible resolution. Also, if the other spouse or parent is aware of your position and makes no effort to make a change, there is little choice left than to get started on your family law matter. Make sure that you visit with your lawyer about options.

From a lawyer’s perspective, filing first means one thing. It means that your client gets to tell the judge his or her side of the story first. And, believe me, this can be significant. I liken it to the child that runs up to their parent, screaming,” he hit me…he hit me!” Isn’t it common nature to do everything that you can to assist the victim?

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