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Final decree of divorce paper with two wedding rings on top. 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.

Contact Skillern Firm

At Skillern Firm, we are committed to helping people through a divorce so that they can move forward with their lives in the best way possible. When you secure representation from a family law attorney from Skillern Firm, you will have support and guidance from someone who truly cares. The attorney-client relationship is at the heart of what we do, so you can speak openly and honestly with us. All of our divorce lawyers are highly skilled in mediation and negotiation. You may think it will be impossible to sit done and come to agreements with your ex-spouse, but many couples are surprised by the progress they can achieve with our help. Where negotiation fails we are also prepared to fight for your rights in a court of law. With over 50 years of combined experience in helping couples navigate divorce and in family law matters, we have the skills and resources to handle even the most complex divorce cases.

Call today to arrange an initial consultation at (936) 213-8479.

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.

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.

Time to Prepare Your Divorce Strategy

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.

Setting the Tone

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.

You Can Allege Fault

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 first, then we can help you evidence your claims.

You Can Ask For Temporary Orders

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, 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.

Choosing Whether to Speak First at Hearings or Trial

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.

It Could Protect You From Abuse

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 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.

The First Opportunity to Ask For Temporary Orders

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.

You Decide The Date of Separation

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.

Choosing the County Where You File For Divorce

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.

Have First Choice of Attorney

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.

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 as soon as possible. We will start working immediately to develop a strong case and ensure that your interests and rights are protected.

Disadvantages of Filing for Divorce First

While there are many advantages to filing for divorce first, there are also some drawbacks. So that you have a clear picture of your options, here are the disadvantages.

You May Need To Pay The Filing Fee

Divorce comes with inescapable costs, regardless of whether you work with an attorney or not. As the petitioner, the first thing you will need to pay for is the filing cost. In Texas, filing fees vary county by county, but they usually range from $250 to $320. There may also be additional fees, such as a fee to serve your spouse’s court papers.

When you file first, you may take steps to move the divorce process along quicker, and overall, you may save money. However, if the advantages above don’t really apply to you and your spouse is in a better position to pay, then it might make more sense for them to make the first move. Filing first does not always mean you will pay the entire fee. You may be able to negotiate splitting it with your spouse.

If you really cannot afford to pay, then you can apply for a fee waiver. To do so, you will need to complete the Statement of Inability to Afford Payment of Court Costs or an Appeal Bond in Justice Court and present it to your county court clerk. There is a guided process available on the court’s website.

You Show Your Intentions

As the petitioner, you will file the first document, called the Complaint for Divorce. In this document, you will have the opportunity to assign fault, and you will state exactly what you want in the divorce papers. Once the papers are served, your spouse will have a lot of information about your strategy, as well as a list of your demands. This will give them the opportunity to respond to them and develop their own strategy.

This makes how you file important. Divorce is a negotiation, so generally, you will want to ask for more than what you want to begin with and let your spouse negotiate for less. However, if you ask for too much, then it could cause hostility and cause your ex-spouse to act out. As the filing spouse, you don’t want to be too aggressive, but it is also important that you don’t ask for too little, as it will be very difficult to ask for more. Your attorney will help you determine what you want to ask for in your petition.

Filing First May Harm Your Relationship

Sometimes there are clear advantages to filing first. However, if you and your spouse still have a good relationship, surprising them with divorce papers might make things difficult. Where possible, keeping an amicable relationship with your spouse is the best option, as it will help your divorce process move along faster and with less cost involved. If you have children then it will also make the divorce easier for them. If you want a divorce, then you may decide that the best thing is to speak to your spouse face-to-face to encourage respect. While strategic advantages are essential, above all else, our goal at Skillern Firm is to help promote a healthy and happy future for you and your family.

What is the Divorce Process in Texas?

There are several steps to filing for divorce in Texas:

  • Filing the Divorce Petition – The petitioner will first file an Original Petition for Divorce and accompanying documents. These must be filed with the court clerk of the county where either spouse has lived for the previous 90 days.
  • Serving the Divorce Papers – The petitioner will then arrange for the divorce papers to be served to the other spouse. This will be done personally through hand delivery.
  • Answering the Divorce Petition – The respondent will then have 20 days to file an Answer.
  • Temporary Orders – Either spouse can ask for temporary restraining orders. The judge can also issue these orders themselves if they deem it necessary.
  • Financial Disclosures – Once the respondent has filed an Answer, the spouses will exchange specific information and documents about their assets, such as their property, retirement plans, and bank accounts.
  • Finalizing an Uncontested Divorce – If both spouses agree on all issues, then they will sign and file a Final Decree of Divorce. After the waiting period, the court will schedule a hearing where a judge will review the divorce papers, and if they determine that everything is in order, they will sign the divorce decree, and everything will be finalized. In Texas, a judge is unable to finalize a divorce until 60 days after the initial filing. However, there are exceptions, such as in cases involving domestic violence.
  • Finalizing a Contested Divorce – Contested divorces usually go through a Discovery Stage. This is a legal process whereby each spouse collects evidence for their claims. It could involve a lot of mediation, court hearings, requests for temporary orders, and more. Most couples will negotiate a settlement with the help of an attorney. If they can’t, the case will go to trial so that a judge can rule on any remaining issues.

Why You Should Choose Skillern Firm

When you file for divorce, you have a lot of law firms to choose from. It could be the most important decision you ever make, as agreements in a divorce decree can have a massive impact on your life. Here is why we believe that we are the most suitable law firm for the job.

Proven Track Record

At Skillern Firm, we have a proven track record and are more than happy to provide you with reviews from previous clients. Our managing director, Mathew Skillern, has the highest possible AVVO rating of 10.0. This is an independent rating that is based on things like awards, years in service, client reviews, professional associations, and more.


At Skillern Firm, we only practice family law. Some firms try to do it all, from personal injury to criminal defense. Our narrow focus means that we have handled countless cases that are similar to yours and have the specialist knowledge needed to get you the best possible outcome.

Accessibility of Your Divorce Attorney

At Skillern Firm, we are always prompt to answer your questions and offer general support and legal guidance. You should always feel comfortable confiding in your attorney, and we strive to foster a good relationship.

Professional Associations and Honors

Bar Associations are a good indicator of an attorney’s ability, as they ensure a high standard of professional conduct. Mathew Skillern is associated with the State Bar of Texas, Fort Bend County Bar Association, and the Houston Bar Association. Honors are also a good sign. They mean that an attorney has been recognized for their work. Mathew Skillern has received several awards, such as Texas Super Lawyers 2010-2011 and 2015-2017.

Does it Matter who Files For Divorce First? FAQ.

Q: Can both spouses file for divorce?

A: 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.

Q: If I file for divorce first, do I get custody?

A: 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.

Contact Skillern Firm

At Skillern Firm, 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 (936) 213-8479.

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