Does It Matter Who Files For Divorce First?

Should you file for divorce first? People ask us this question all the time.

People often look for any advantage they can find when it comes to ending a marraige. For a process known to be contentious and full of conflict, this makes sense. In some cases, this resembles open warfare. Many maneuvers and strategies can and do provide an edge.

But does being the first out of the gate put you in the lead?

As usual, the true answer isn’t black and white. You have a lot to consider, so let us break it down for you.

Should You File For Divorce First?

Many people believe that if you file for divorce first, it gives you an advantage; but no two divorces are ever identical.

It can in some instances, but not always. In fact, in certain cases, it damages your cause.

Each case has its own set of circumstances and variables to take into account. So what works in one may prove disastrous in another.

Related Reading: Divorce And Filing Forms: What To Know

Advantages of Filing First

Being the one to file for divorce first definitely gets the ball rolling. But that doesn’t always mean it puts you in an advantageous spot.

It’s important to look at your case and make sure it’s the right decision. As with many legal matters, there are potential benefits and detriments to consider.

Time For Preparation

When you file for divorce first, the biggest advantage it gives you is the opportunity to prepare. By the time you reach this stage, your marriage has probably seen better days. Still, if your spouse files for divorce first, it often comes as quite a shock.

Being the petitioner doesn’t change any of the formality, but at the beginning of every process, there is a need to address some issues at least on a temporary basis. Things like:

• • Who gets to stay in the house?
  • Who do the kids live with?
  • Who pays the mortgage? 

If you kick things off, surprise won’t be a factor. You define the issues to address. You serve the other party, then the other party gets to do a response. Essentially, you get the first word and the last word. How much weight that carries, however, varies from case to case.

You won’t have to scramble to get everything in order and meet deadlines. Ending a marriage comes with a wide array of things to deal with. You have to collect or prepare financial statements, legal documents, and other important papers.

In many cases, you want to hire a divorce attorney, a process unto itself. You may be able to save money to cover the fees or enlist a financial expert to advise you.

All of this requires organization. If you file for divorce first, you have the opportunity to arrange everything beforehand.

Depending on the circumstances, you may also prevent your spouse from hiding assets, emptying accounts, or doing other shady business. Hopefully, that’s not necessary, but it does happen.

In general, this gives you a chance to prepare. But even if you’re getting ready and your spouse files first, the work you’ve already done remains useful. You have to do the same things eventually, so the work isn’t a waste.

Related Reading: How Long Does Divorce Take In Oregon?

Setting Jurisdiction

Divorce and custody laws vary a great deal from one state to the next, sometimes even county to county.

For example, when it comes to the division of property, our neighbors to the North and South, Washington and California, adhere to the community property model.

In Oregon, however, we practice equitable distribution. This impacts on how courts divide assets and debts in divorce.

Jurisdiction also influences child custody, spousal support, and more.

When you file for divorce first, you have more influence on where jurisdiction falls. If you and your spouse live in the same place, it may have a minor effect. On the other hand, if you live in different cities or states, jurisdiction can have a major impact.

Children also drastically impact jurisdiction in divorce and custody cases.

With the Uniform Child Custody Jurisdiction Act and similar legislation, courts take a child’s best interests to heart.

Their well-being takes precedence, so in those cases, when you file for divorce first, it may not carry as much weight. Courts take a variety of other factors into account when determining jurisdiction in custody cases.

Related Reading: The Uniform Child Custody Jurisdiction Act

Presenting Your Case First

When you file for divorce first, you usually have the chance to present your case first. While that sounds like an ideal situation, there are, again, positives and negatives to consider.

Presenting your case first gives you the chance to make a convincing first impression. Especially if you have a strong case and compelling evidence on your side.

Related Reading: Common Divorce Mistakes

Disadvantages of Filing First

Possible Negative First Impression

If you file first but don’t have compelling evidence on your side, or it’s apparent you weren’t prepared, you risk leaving a lingering negative impression. That may color the rest of your case. Judges are, after all, human.

You show your hand first

This isn’t a TV courtroom with a jury, surprise witnesses, and big gotcha moments. But by presenting first, you do reveal your strategy. Your spouse and opposing counsel then have time to tailor their response.

Ideally, you and your divorce lawyer have laid the groundwork for a strong case based on sound legal strategy. If that’s true, when you present shouldn’t be an issue. A sturdy case is sturdy regardless of whether you’re first or second off the blocks.

Related Reading: How Oregon Divides Property in a Divorce

So, Should You File For Divorce First?

As already stated, every case plays out differently, so there’s no one-size-fits-all answer. What’s best varies from case to case. Depending on your circumstances, it can benefit you, have a negative impact, or have little influence at all.

Taking an (appropriately) aggressive and proactive approach, however, can benefit your case.

If you’ve done all the groundwork and built a strong foundation, either on your own or with an attorney, by all means, file for divorce whenever you’re ready.

But if you don’t have a plan in place, don’t rush things.

Don’t file for divorce first just to be first, or do it out of spite. You may want to get things started just so they’ll be over sooner, but that often backfires. If you’re not ready, it costs time, money, and results.

Take the steps to build a sound, organized case. Gather all of your paperwork and collect important documents. Figure out if you need a divorce lawyer or not. Being prepared only benefits you.

Related Reading: No-Fault Divorce: What Are Grounds For Divorce In Oregon?