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Is it a Race to the Courthouse to File for a Divorce

On Behalf of | Dec 14, 2018 | Divorce

We are often asked “is it a race to the courthouse to file for a divorce in North County San Diego?”  Who files first in a divorce action is actually often of little consequence except and unless the matter actually goes to trial.  Even then the advantage for the party who filed for divorce is often slight.   As experienced divorce and family law attorneys in Carlsbad, we can tell you that at the time of trial the ‘Petitioner’ presents their evidence first, followed by the presentation of evidence by the ‘Respondent’. The party who files first is the ‘Petitioner’ and the other party is the ‘Respondent’.

So, if you file first and if your case is one of the few which is not otherwise resolved through negotiation or mediation, then you have the advantage of presenting your family law case to the Judge before the Respondent presents his/her case.  At times, the case settles mid-trial based upon the impression left by the evidence presented by only one side.  Also, if the Judge is swayed by the power or impact of the evidence presented by the Petitioner [even though this may raise concerns regarding an issue known as pre-judging], the Respondent may never erase the impact of the first impression.

In our experience, the Judges of Carlsbad are highly trained and skilled presiders.  California family law judges and magistrates are to remain undecided until all the evidence is presented.

Could a race to the Courthouse to file for a divorce actually backfire?  Experienced divorce attorneys also know that in high conflict or hotly contested divorces, there may actually be an advantage for the Respondent.  California law gives the Responding party an advantage by allowing the Respondent to immediately commence formal discovery in a divorce case. The Petitioner must wait at least 20 days after serving the Respondent with the Summons before starting formal discovery.

In many cases, information ‘discovered’ from the other party, social media or third parties very early in the case is truthful and contrary to written claims typed and prepared by opposing parties. This evidence can be detrimental to the Petitioner’s case.  If the information is obtained before the Petitioner has been educated about how to answer there is much less opportunity for subterfuge or duplicitous motivation.

Is it a race to the courthouse to file for a divorce in North County San Diego?  There are reasons and times when it is advantageous to file first and times when it is actually better to be the responding party.  This is why you should talk with one of our experienced certified family law specialist and experienced trial attorneys who provides sound counsel on how and when to best protect yourself when confronted with the imminent breakdown of the marital relationship.  Are you looking for substantial answers to your questions about divorce?  We invite you to review the recommendations of our clients and contact us or call 760-389-3927 to schedule an appointment with one of the Carlsbad attorneys at Burke & Domercq, APC.