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Divorce: Does It Really Matter Who Files First?

divorce california

You may have heard the old saying, “He who files first, files best.” Is that really true in divorce cases, or should you wait to be served before answering a divorce claim?

The short answer is, “Yes, it matters,” but the accurate answer is, “It depends.” Every divorce situation is different, and although the non-filing spouse statistically may face consequences for waiting to be put on the defensive, sometimes this is actually the best legal move.

Filing First: The Benefits

There are reasons for the old saying and the attitude prevalent among attorneys that it is better to take the offensive stance and file for divorce first. These reasons include:

  • The spouse that files first may have more control over the speed of the proceedings and certainly sets the clock ticking to start the timeline for answering motions and other pleadings.
  • A judge may be influenced by the grounds stated in an initial filing, especially if the spouse is alleging abuse, adultery or other “bad” behavior. The ultimate divorce may not hinge on those grounds, but the judge’s attitude can still be colored by these accusations.
  • The filing spouse may request that the responding spouse pay half of the fees associated with filing for divorce.

Most divorces are ultimately settled by mutual agreement; only a small percentage ever go to trial. Of those that do, the petitioning spouse is almost guaranteed to be granted a divorce at some point; however, there may be very long, drawn-out battles between filing and the final decree.

What Should I Do If I Am Facing Divorce?

Because each situation is so different, it is almost impossible to give blanket advice on what to do in a divorce-prone scenario beyond saying: get a lawyer. This is always the best advice, as a divorce lawyer works to protect your rights.

Many fathers find themselves on the receiving end of divorce papers and as a result lose a certain amount of control regarding contact with their children. A divorce lawyer can help ensure that your rights as a father are protected and that visitation, custody, child support and other issues are handled fairly. It is vital that you protect your rights as a father in a world in which women are routinely given child custody and large amounts of support.

An attorney can also give you good advice whether filing first will be to your benefit. If so, the attorney can guide you through the process of filing and help you determine the best way to protect yourself in a divorce situation.