Does It Matter Which Spouse Files For Divorce First?

If you’re considering divorce, does it matter which spouse files for divorce first? Generally speaking, no, it doesn’t matter or make a difference who files for divorce first, because the judge will appreciate both spouses’ evidence impartially. However, it matters if you and your spouse live in different states, because different states have different rules on child support, spousal support, child custody, and division of marital property. In that case, the spouse who files for divorce first may file in a state whose laws are more favorable to that spouse’s situation, which might preclude other courts from further acquiring jurisdiction over the divorce action.

Whether you should file for divorce first

As much as possible, your attorney should refrain from filing for divorce without arriving at a pre-filing divorce settlement. Filing for divorce, without first attempting to negotiate a settlement, will lead to expensive legal fees. Filing for contested divorce should be a last resort when negotiations are going nowhere.

In New York, contested issues in a divorce relate to spousal maintenance, child custody, child support, and division of marital assets and debts. When the other spouse is giving a lowball figure, an unacceptable amount because your contested divorce attorney knows you are entitled to so much more, your contested divorce attorney will tell you it’s time to stop negotiating and it’s time to file.

Rarely do divorce actions go through trial. Usually, parties settle once divorce complaints are filed to ensure legal fees don’t become too exorbitant.

Advantages and disadvantages of filing for divorce first

Some say the advantage of filing for divorce first is that you are able to prepare on the paperwork required for the divorce, such as financial documentation. However, most of the time, a spouse would already have most of this paperwork when negotiating a pre-filing divorce settlement. Knowing the marital assets and having supporting financial documents during negotiations allow the spouse to make an intelligent decision on whether to negotiate, accept, or reject the settlement offer.

Others claim one disadvantage of not filing for divorce first is that the other spouse is caught off-guard, finding a lawyer to represent them, gathering the documents required, and answering within the prescribed deadline. However, in most cases, spouses aren’t really caught off-guard with a divorce filing because divorce settlements are usually negotiated pre-filing and it is only when negotiations fail do spouses initiate filing a contested action for divorce.

Practically, the only time filing for divorce first matters is when both spouses live in separate states, and a spouse can file in a state with more favorable laws to such spouse’s situation.

Divorce, especially with property and children, is one of the most difficult things one can go through. A turmoil in family life can cause a lot of pain. Having a good contested divorce attorney beside you can ease the burden of going through a divorce by ensuring that you get the best deal out of it. Should you need assistance, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].