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Does it Really Make a Difference Who Files for Divorce First?

On Behalf of | Nov 27, 2019 | Divorce

We are often asked questions such as “does it make a difference who files for divorce first?” or “what happens if my spouse files first?”  No one should be in a hurry to file divorce papers.  There may be urgency to file in cases involving domestic violence, criminal activity or other abuse where emergency restraining orders may be required, but most cases do not involve these contingencies.  Others may fear retribution from children when they accuse you of filing for divorce and breaking up the family (after hearing as much from your former spouse).

Filing first may provide an advantage when venue or jurisdiction is in question.  For example, if you are here in Carlsbad and your former spouse is in another county or out-of-state you may gain an advantage by securing local jurisdiction for the case.  Another reason to consider filing first is concern regarding withdrawal of funds in bank accounts or the sale of real estate or other assets and hiding the cash or leaving the area with the funds.

While these actions are against the fiduciary duties each spouse owes to the other and will ultimately be set right by the court, the time and cost of these proceedings may be avoided by filing first.

As the person who files for the divorce (known in the case as the “petitioner”) you could gain an advantage in child custody and parenting time, child support or spousal support.  The initial filing often makes requests for temporary orders regarding all of these issues.  If the other party refuses to file an answer, the Judge may very well simply issue the orders requested in the filing.  However, a properly timed response can quickly erase any perceived advantage.

Does it matter who files for divorce first in North County San Diego?  In most cases there may not be any real advantage gained by racing to file.  Divorce should be given careful consideration and pre-planning.  Filing first may or may not be in your personal interest.  The best option is to seek the advice and counsel of the proven and experienced Certified Family Law Specialists at Burke & Domercq.

We invite you to review the strong recommendations of our clients and the legal industry and contact us or call 760-389-3927 to learn more and schedule an appointment with one of our attorneys.

We will help you to carefully plan and develop strategies to help accomplish your goals while providing sound guidance on issues such as who files for divorce first and other important questions.