Does it Matter Who Files For Divorce First?
If you and your spouse are considering divorce, then you may feel the need to make the first move. In the rare instances where there are no contested issues and the divorce is amicable, it won’t really make a difference who files first. Usually, however, there are some contested issues. After all, you have built a life together, and separating it brings challenges. Factors such as property division, child custody, spousal support, and child support are all common areas of contention. This means it is often essential that you seek advice from an experienced divorce attorney who can guide you through your divorce and help to protect your interests. Court orders laid out in a divorce decree could have an enormous impact on your quality of life, therefore it is essential that you take action to protect yourself and your family.
Call today to arrange an initial consultation at (832) 688-6606
Does it Matter Who Files for the Divorce First?
If your divorce is fairly straightforward, you still get along with your spouse, and you agree on all the aspects of your separation, then it won’t really matter who files first. However, it is important to remember that how you settle a divorce will have a big impact on your future, therefore you may wish to seek advice from an attorney anyway to make sure your way of life is protected. If you are dealing with a contested divorce, meaning you disagree on key issues, or are struggling to communicate with each other, then there are advantages to filing for divorce first.
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As the petitioner, you will have time to prepare your strategy. You can do this with the help of a divorce attorney before you file for divorce. For example, if you believe your spouse has hidden assets, then your attorney can find evidence that they exist.
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When you make the first move, you can attempt to set the tone of the proceedings. If you are hoping to minimize conflict and pursue an uncontested divorce, then filing first might give you a better chance of achieving that.
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If you believe your spouse is at fault for your separation, then filing first will allow you to allege fault. For example, if your ex-spouse cheated on you or was abusive, then filing first will allow you to make this clear. When you file first in Texas, you can either file for a no-fault divorce or you can file an at-fault divorce. To allege fault, however, you will need to prove it. If you can prove it, then the court may look more favorably on you when it comes to determining things like spousal support and child custody. If you speak with an attorney at Skillern Firm Divorce & Child Custody Lawyers first, then we can help you evidence your claims.
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If you cannot trust your spouse with property or money that belongs to you, or they are abusive and you do not want them around you or your children, then filing first will give you some control over the situation. You can file for temporary restraining orders to stop them from making monetary decisions while the divorce is proceeding or to keep them away from you and your children. Depending on your set of circumstances, you may also want to consider a temporary order to prevent your ex-spouse from leaving the state with your children. When you contact Skillern Firm Divorce & Child Custody Lawyers, we will arrange an initial consultation. This is an in-depth review of your case where we will determine if any temporary orders could benefit you and will help you achieve them.
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When you file first, you will have the right to speak first or last at hearings or trials. This will allow you and your attorney to determine what strategy is best in your case. While speaking first will allow you to present your side first and frame the argument, speaking last will allow you to respond to your ex-spouse’s arguments and have the final say.
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Family law has its drawbacks, but it is designed to protect the most vulnerable. If you have suffered abuse at the hands of your spouse, then you should contact Skillern Firm Divorce & Child Custody Lawyers as soon as possible. Filing first will keep your spouse unaware of your plans until the last moment, and you will have an opportunity to file for a restraining order against them. This keeps the power in your hands and will protect you and your children.
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Sometimes filing for divorce can set off a wave of conflict and difficult emotions. This can make negotiations between separating spouses particularly difficult. Divorce proceedings can take a long time, sometimes up to two years, and sometimes, where divorce mediation is not possible, couples may need guidance in the meantime. This is often the case when it comes to things like child custody and who will live in the residential home.
Courts will often enforce temporary orders, which will place obligations on separating spouses until their divorce is finalized. At this point, the divorce decree will take its place. When you file for divorce first, you will have the opportunity to make requests for temporary orders to the court first. The court may then hold a hearing so both spouses can argue their case. Having the first word may give you a slight advantage, especially as you will have had extra time to prepare with your attorney.
When it comes to issues such as child custody, this can be important. While temporary orders are not permanent, they can affect the eventual divorce decree. Family law judges are required to make decisions based on what is in the best interests of the child, which often means creating as little disruption to their life as possible. Therefore, if you win temporary custody, you may be more likely to gain primary custody in the final agreement. An attorney will help you to argue the case as to why you should have custody. This will involve evidencing your relationship with the child, your plans for childcare while you are at work or school, your child’s relationship with your extended family, and more.
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If you and your spouse are already living separately, and neither of you is looking to reconcile the marriage, then this won’t apply to you. However, if you still live together, then the court may see the date you file as your separation date. This may have implications for how your property is divided. Texas is a community property state, which means that any assets attained while you are married are considered marital property and will be split in a ‘just and fair manner.
That doesn’t mean a 50/50 split. Many factors can affect how property is split, such as who has primary custody of children, the needs of each spouse, each spouse’s contribution, the length of the marriage, and more. However, only marital property will be subject to division. Any assets obtained before or after the separation date are considered personal property and will continue to belong to you after the divorce is finalized.
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Where you choose to file for divorce will be where all of your divorce proceedings take place. You must file for divorce in the county you live in. However, if your spouse has been living in a different county for 90 days or more, they could file for divorce where they live. This would place an obligation on you to travel to courtroom proceedings. When you file for divorce first, all proceedings will be in your own county, making life easier for you. In some cases, there may be some strategic advantages to filing for divorce in your spouse’s county. An attorney can help you determine your strategy and make decisions that will serve you in your divorce case.
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Once your spouse interviews an attorney, even if they do not agree to representation from them, that attorney is unable to represent you from that point onwards. This is considered unethical and is against the rules of professional conduct in many State Bar Associations. If someone is looking to fight dirty, they might interview lots of attorneys to prevent their spouse from finding a good lawyer. We definitely do not recommend this, but if you believe it is something your spouse is capable of, then you may want to act quickly. Retaining a high-quality divorce lawyer can have a tremendous impact on your case. Therefore, having the first pick could be a great advantage.
Does it Matter who Files For Divorce First? FAQs
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No, only one person can file for divorce first. In order to make the best decision, we advise you to speak to your attorney. They will be able to advise you on what they believe to be the best plan of action.
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Filing for divorce first does not affect custody decisions. The judge will consider what is in the best interests of the children when determining custody.
Divorce Terminology in Texas
Most of our clients have never needed an attorney before or entered a courtroom, which can make it feel a little overwhelming. Fortunately, a divorce attorney will guide you through your divorce case and answer your questions so that you feel confident about your future.
To begin with, it is important to know a bit of terminology.
- The Petitioner – The spouse who files for divorce first.
- The Respondent – The responding spouse.
- Divorce Petition – The first document which starts the divorce process.
What If My Spouse Already Filed For Divorce?
If your spouse has already filed for divorce, then there’s no need to panic. While there are some benefits to filing first, the court will evaluate both sides fairly, and you will still be able to argue your case. However, you should act quickly to develop your strategy and catch up with your ex-spouse. Once you have been served the papers, you should contact an experienced divorce attorney from Skillern Firm Divorce & Child Custody Lawyers as soon as possible. We will start working immediately to develop a strong case and ensure that your interests and rights are protected.
Contact Skillern Firm Divorce & Child Custody Lawyers
At Skillern Firm Divorce & Child Custody Lawyers, we have been practicing family law for over 50 years collectively. We are committed to protecting your rights and interests and securing the best possible future for you. Our family law firm is prepared to handle even the most complex cases. So regardless of whether you are hoping to file for divorce first or your spouse has already filed, contact us as soon as possible to get guidance on your next steps.
Call today at (832) 688-6606
