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Is it a Race to the Courthouse when Filing for a Divorce

On Behalf of | Jan 1, 2019 | Divorce

Is it literally a race to the courthouse when filing for a divorce in North County San Diego?  Who files first in a divorce action is of little consequence except and unless the matter actually goes to trial.  Even then the advantage is often slight.

The party who files first is the ‘Petitioner’ and the other party is the ‘Respondent’.  If the case goes to trial the ‘Petitioner’ presents their evidence first, followed by the presentation of evidence by 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 race to the courthouse when filing for a divorce is pointless.  For example, several cases settle 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 [despite the fact such is inappropriate pre-judging], the Respondent may never erase the impact of the first impression.  Judges are trained NOT to pre-judge and to remain undecided until all the evidence is presented.  Yet, judges are human and controlled by human experiences which at times intellect cannot overcome. Experienced divorce attorneys also know that in high conflict or hotly contested divorces, the real advantage is sometimes actually the Respondent.

The law gives the Responding party an advantage by allowing the Respondent to immediately commence formal discovery.  The Petitioner must wait at least 20 days after serving the Respondent with the Summons before starting formal discovery.  Many times information ‘discovered’ from the other party or third parties very early in the case is truthful and contrary to written claims typed and prepared by the attorney.  This evidence can be detrimental to the Petitioner’s case.  If the information is obtained before the Petitioner has been educated about what answer is most beneficial there is no subterfuge or duplicitous motivation.

Because there are reasons and times when it is advantageous to file first and times when it is advantageous to be the responding party it isn’t simply a race to the courthouse when filing for a divorce in Carlsbad, Oceanside, Encinitas or Vista.  It is important to talk with one of our experienced family law attorneys who knows the rules of litigation to determine how and when to best protect yourself when confronted with the imminent breakdown of the marital relationship. For specific and confidential answers to your questions contact one of the Carlsbad attorneys at Burke & Domercq, APC or call 760-389-3927 to schedule an appointment.