Does It Matter Who Files For Divorce First?

When married couples get divorced, some may make this decision jointly, while in others, one person wants out. If you’re in a marriage that’s coming to an end, you might be wondering whether it matters which of you files for divorce first.

According to Ernst & Associates, it legally doesn’t matter which spouse files for divorce first. The majority of states have no-fault divorce laws, which means the courts won’t favor the first spouse to file or punish the respondent. Still, there may be some significant advantages to being the first one to file the divorce petition, and knowing what they are can help you decide if you should get started or wait until you’re served. 

What Are the Advantages of Being the First to File for Divorce?

If you’re thinking of filing for divorce, some advantages may make you decide to be the first to file.

Choice of Jurisdiction

When spouses live in different counties or states,

person who files first will usually get to choose where the case will be heard in court. If you and your spouse live far apart, you can potentially save thousands of dollars in travel costs. Jurisdiction also matters when it comes to local laws, and it may be to your advantage to choose it to get a more favorable outcome in terms of property division. 

Preparation Time

If you file first, as the petitioner, you can take months to gather all of the evidence needed, such as financial records, bank statements, and assets. Once your divorce petition is served to your spouse, who becomes the respondent, they will usually only have 20 to 30 days to hire a lawyer and file their response. In cases involving many complexities or high-conflict, having this advantage is key.

First Impressions

Filing first means that you have the chance to set the first impression as the judge will see your petition first. You can control the narrative, stating your requests for assets and custody before your spouse gets to respond. This lets you set the tempo for the entire case, and that could work to your benefit.

Temporary Orders

Spouses who are concerned about money, assets, or shared children should be the first to file. They get the ability to request immediate temporary orders for custody schedules and standing orders that can freeze joint accounts, which prevent your spouse from hiding money from you.

Getting the Last Word

The majority of jurisdictions allow the petitioner to not only present their case first but also give the final rebuttal. That last word may seal the deal, allowing you to walk away with a greater advantage when the divorce is finalized.

Are There Any Disadvantages to Filing for Divorce First?

While filing first gives you a leading edge over your spouse, there are a few downsides to keep in mind.

Filing Fees

The first spouse to file is responsible for paying the first court filing fees plus the cost of serving divorce papers to their spouse. If you are the respondent, you will pay less.

Shows Your Hand Upfront

When you are the first to petition the courts for your divorce, you must list all demands, such as any specific property you want or alimony. This allows your spouse to see what cards you’re holding from the start as they work with their attorney to prepare their case.

Appearing Aggressive

It could also seem like you are the aggressive party by filing first. This could make it more complicated, particularly if the negotiations had the potential to be amicable.

Ultimately, it may be better to wait until you’re fully prepared for the good and bad that come with filing for divorce first. While it doesn’t matter legally who is the petitioner, especially in a no-fault state, it is wise to weigh the pros and cons before taking this step, especially if you have a complex or contested divorce.

Is Ohio a No-Fault Divorce State?

Ohio is a no-fault state for divorce, though it does allow fault-based divorces. When filing under no-fault grounds, it is usually due to both parties no longer getting along or living separately for at least one year.

Additionally, the state differentiates between dissolution and divorce in that the former is no-fault, where both parties are in agreement on all of the terms, including property, custody, and spousal support, before filing. Divorce begins with one of the spouses filing the complaint with the courts.

Certain fault-based grounds can apply in Ohio despite it being a no-fault state. For example, if you found your spouse was committing certain actions, such as cheating on you with another partner, legally known as adultery, you’d have grounds to file a fault-based divorce. Other acceptable grounds include enduring extreme cruelty, willful absence for one year, forming a fraudulent contract, or gross neglect of their duties. 

Should I File for Divorce First?

Filing for divorce, just like entering into marriage, is something that requires ample thought before making this decision. You’ll want to think about many key factors, such as property division and whether your state allows for equitable distribution or not. Understanding the terms is also important, as equitable distribution focuses on being fair, which may not equate to being equal. 

You will want to think of any potential advantages for the jurisdictions as well. Talking them over with your attorney is a great place to start since they will be able to give you specific advice that pertains to your unique situation. You may not want to show your whole divorce strategy off the bat. Then again, you might really want to end the relationship with your spouse, and if they don’t, you may have little choice in the matter.

You’ll wind up paying more as the petitioner, but if ending your marriage is what’s best for you, then it may be money well-spent. The importance of having a divorce attorney you trust cannot be understated, and they’ll be able to help guide you through the entire process.

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