Wednesday, February 25, 2015

Should I Rush to File my Divorce First?

If you are about to become divorced you may be concerned about getting to the courthouse first to file the petition.  Many people have the impression that if they don’t file first they will have a more difficult time getting temporary possession of the home, or obtaining favorable terms relating to property or children.  However that is generally not the case.

Here are the ways in which being the Petitioner matter:

Selection of the county for the proceedings (venue) In most cases, where to file is obvious.  But in some situations, there may be a choice.  A divorce may be filed in the county where either spouse is a resident (must meet the residence requirements), or where the last marital residence was.  An example: the couple lived together in county A, then one of them moved to county B and established residence, there would be a choice of where to file since the divorce can be filed in either county A or in county B.  So, one of the spouses may want to hurry and file first in order to make sure that the courthouse in which the divorce is filed will be geographically convenient to them.

Payment of initial filing fee Whoever files first also pays the initial filing fee.

Setting the tone of the initial proceedings Whoever files first sets the tone of the proceedings at least temporarily.  The first filer (petitioner), will decide whether to file a fault or no fault divorce.  However, this can change, because pleadings can be amended and changed by either party. 

Going first if there is a trial:  If there is a trial, the Petitioner will get to go first in the courtroom.  Although the majority of cases do not go to final trial, this fact can have an impact on trial strategy.

Overall, if you don’t make it to the courthouse first, you should not worry.  You will still have the opportunity to file an answer, file other court documents, negotiate, attend mediation, and have your day in court if settlement does not happen.  

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