Does it Matter if You File First For Divorce?

One of the first questions asked by clients considering divorce is whether it matters which spouse files for divorce. Many clients worry that by not being the spouse to file, they may be giving up important rights and may be giving the other spouse the upper hand.

While it does not matter who files for divorce first, filing for divorce quickly is recommended for the time needed in planning and gathering information leading up to a divorce.

Filing for Divorce in California

An individual may file for divorce in the California Superior Court in that person’s county of residence. Residency will be established if the person has lived in California for at least six months prior to filing and in the county where the case is filed for at least three months.

A divorce will normally take at least six months. And depending on the circumstances of the case, it could likely take longer. Therefore, it is important that if the spouses want things to move along that they do not delay in filing.

Does Filing First Matter?

The Court will make orders, including the equitable distribution of property, based on the facts of the case and not which person filed first.

While many people believe that filing first gives that person the upper hand, that is wholly untrue. The party who files for divorce first is known as the “Petitioner.” The party served with the petition is known as the “Respondent.” This designation means the person “responds” to the petitioner’s position.

The one benefit of filing first is it allows a party unlimited time before-hand to get their affairs in order. Once a party is served with a petition for divorce, they have only 30 days to respond. This means in a mere 30 days they need to find the proper filing paperwork, determine their stance on each issue in the divorce and find an attorney they are comfortable with.

Spouses Residing in Different States

If the spouses live in separate states, the spouse who files first can do so in his or her state of residence, if he or she meets the residency requirements. The problem then becomes which state rules with respect to the legal standards under state law.

Some spouses will choose states that have better laws with respect to custody or division of property. For instance, California is a Community Property state, which means that property is divided roughly in half.

California is also a “no fault” divorce state, meaning that fault is not an issue that needs to be debated. Rather, the grounds for divorce are based on irreconcilable differences or a few other narrow reasons.

Other states require that fault be determined, making the proceedings much more adversarial. Therefore, if one spouse has concerns that the other spouse will be filing in a state where fault will be debated, ensuring that he or she files first in California can be advantageous.

Additional Considerations

As discussed above, California family law also includes a provision for what is known as an “automatic temporary restraining order,” also known as an ATRO.

The ATRO will go in effect as soon as the respondent is served with a copy of the divorce petition. The ATRO keeps the spouse from leaving the state with the parties’ minor children and from concealing, selling or otherwise tampering with marital assets.

Filing and Service

The action of filing first can ensure that the petitioner’s divorce will be heard in that specific county. However, what happens when spouses file petitions in different counties?

In these situations, it will come down to which spouse serves the other spouse with the paperwork first. Whichever spouse is served first, that petition will be the prevailing case over the two petitions.

Contact The Voss Law Office Today!

If you are going through a divorce proceeding, contact us today to discuss your case. Acting quickly is recommended for the best possible outcome in your divorce. Consultations are always free. Call us today at 323-333-4481.