Is There an Advantage to Filing for Divorce First?

There can be advantages to filing for divorce first, depending on your specific circumstances and objectives. While initiating the process doesn’t guarantee a favorable outcome, being the first one to file can position you strategically, offering a few key benefits.

In this article, we’ll explore why filing first may work to your advantage, breaking down the legal, financial, and emotional implications, and providing guidance on how to make the best choice for your situation.

How Does Filing for Divorce First Give You An Edge?

Divorce is an unpleasant experience, no matter what you feel towards your partner. But, strategic planning and navigating the situation with compassion can make the situation better for all the parties involved. Here are some reasons why filing the petition for divorce in Texas can give you an edge:

Gaining a Sense of Control in a Time of Uncertainty

Divorce is naturally a time of transition, uncertainty, and stress. By filing first, you might feel a sense of control over the situation, which can make the process feel slightly less daunting. Additionally, taking the lead allows you to set the tone of the proceedings and establish a clear plan from the beginning. Filing first also means you’ve taken the time to assess your needs, consult with an attorney, and prepare yourself both emotionally and legally. 

Choice of Jurisdiction

In the U.S, divorce laws vary from state to state, and some jurisdictions have stricter or more favorable laws around the division of assets, alimony, or custody. If you and your spouse have recently relocated, or you live in different states, filing first means you may have a say in determining where the case is filed, provided you meet residency and personal and subject-matter jurisdiction requirements.

By selecting a favorable jurisdiction, you may be better positioned regarding property division, support orders, and the timeline for the divorce. 

If you and your spouse reside in different states, consult with a family law attorney such as Essex Law Firm to determine the best jurisdiction for filing, as it could significantly impact the outcome. Failing to file for divorce in the correct jurisdiction (including the correct county) can result in the court dismissing the case, causing additional expenses, time, and stress.

Presenting Your Case First

When filing a petition for divorce in Texas, you have the opportunity to present your case first. This can be beneficial, as it allows you to frame the narrative and present your arguments before your spouse responds. However, this also puts the burden of proof on you to establish your claims convincingly.

Being the first to present can also set the tone in terms of requests for custody, support, and property division. Although the respondent (your spouse) will have their chance to counter, leading with your case may give you a psychological edge in influencing how the court interprets the situation. If your spouse doesn’t respond to the petition, your case becomes a default divorce. Default divorce cases typically happen when the respondent is not located or they agree to an uncontested divorce. 

Protecting Assets

According to Versus Texas, filing first does not necessarily guarantee a favorable outcome in property division. However, filing first can prevent your spouse from taking drastic financial actions, such as transferring funds or accruing unnecessary debt. Courts can implement automatic temporary restraining orders (ATROs) or similar financial orders upon filing, which freeze significant financial moves, like selling property or withdrawing large sums without a court order or the spouse’s consent, to ensure that neither party manipulates assets during the divorce.

Discuss your situation with a well-established attorney such as Essex Law Firm to determine how your state handles automatic financial restraints. While most states protect both spouses’ interests, understanding the process helps ensure you can safeguard your financial position.

Custody Considerations and Stability for Children

If children are involved, filing first may give you some control over initial custody arrangements, particularly if you’re aiming for stability. Temporary custody orders aren’t guaranteed to translate into a final arrangement, but courts consider these early orders and the children’s best interests when determining permanent custody.

If custody is a priority, consider what arrangement would best support your children’s stability. Whether you aim for shared custody or primary custody, having a plan in mind can guide your requests for temporary orders and provide your children with continuity.

Frequently Asked Questions

Can I file for divorce in Texas? 

Yes, if courts in Texas have jurisdiction over the matter. Jurisdiction in divorce cases is of two types: personal and subject-matter jurisdiction. In Texas, a court can generally assert personal jurisdiction over a party if: 

• The party is a Texas resident.
• The party consents to jurisdiction in Texas.
• The parties lived together in Texas as a married couple.
• The cause of the divorce accrued in Texas.

Subject-matter jurisdiction requires that at least one spouse has been a Texas resident for the last six months, and the spouse filing for divorce has been a resident of the county where the case is filed for the preceding 90 days. 

Will filing for divorce first guarantee access to spousal support?

Spousal maintenance depends on various factors such as the duration of marriage, wage disparity between you and your spouse, and if one of the spouses experienced domestic violence. To discuss your chances of securing spousal support, contact Essex Law Firm.

Will I regret filing for divorce first?

Divorce is a personal decision that depends on the unique circumstances of your case. Filing for divorce first might put on you the burden of proof to establish your claims, the responsibility of paying court fees, and being perceived as the party that wants to end the marriage. 

Final Thoughts

Filing for divorce first doesn’t guarantee a “win,” but it can provide key advantages that may ease the process. From choosing the jurisdiction and presenting your case first to setting temporary custody and asset protection orders, filing first allows you to take a proactive approach. 

However, the decision should be based on your circumstances, priorities, and the advice of a skilled attorney. Divorce is a complex process with no one-size-fits-all answer. What matters most is approaching the process thoughtfully, prioritizing your well-being, and making choices that align with your goals. Taking the time and working with an experienced attorney such as Essex Law Firm to consider whether filing first is right for you can lead to a more informed, empowered journey through divorce.