Disadvantages Of Filing For Divorce First

by | Jan 21, 2025 | Divorce

Marriage can be difficult, and choosing whether to be the one who initiates the divorce process can feel overwhelming. While there are both advantages and disadvantages of filing first, it’s important to consider how it might affect your financial situation, legal strategy, and even your emotional well-being.

This post will walk you through the potential downsides of filing first, clear up some common misconceptions, and help you decide whether filing those papers is truly the best option for your situation.

3 Disadvantages of Filing For Divorce First

While filing for divorce may seem like taking control of the situation, there are potential downsides to being the first to act. Let’s explore some key disadvantages:

1. Filing Fees

As the petitioner—the person who initiates the divorce—you are responsible for paying the initial filing fees, which can vary by county in Florida. These fees are typically higher than those faced by the responding spouse.

2. Setting the Tone

Filing first can unintentionally set a confrontational tone for the divorce. Your spouse may feel as though they are being forced into the process and may react by becoming more defensive or combative.

Even in cases where both spouses agree that the marriage is over, being the first to file can cause resentment or mistrust, complicating discussions around settlement and parenting plans. This can create friction during key negotiations involving spousal support, child custody, and divorce terms, dragging out the divorce and making it more emotionally taxing.

3. Emotional Burden

Being the person who files for divorce can come with a significant emotional toll. You may feel pressured by others—or even yourself—to justify why you are the one ending the marriage. This sense of being “responsible” for the breakup can cause stress, guilt, or anxiety, especially if your spouse was not expecting the filing.

Beyond your own emotions, you may also have to navigate the reactions of family, friends, and your children who may have opinions about your decision to file. This added burden can make an already difficult process even harder to manage.

attorney showing client where to sign

3 Myths About Filing First

When it comes to filing for divorce, people often believe that being the one to initiate gives them a legal or strategic edge. While there are situations where filing first may be beneficial, it doesn’t guarantee any special advantages.

Myth 1: Filing First Guarantees You Will Get Custody

Many people assume that being the one who files first will increase their chances of gaining full custody of their children. In reality, this isn’t the case.

Florida courts prioritize the best interests of the child, focusing on joint custody and ensuring both parents remain involved in the child’s life whenever possible. Filing first won’t sway the court’s decision on child custody unless there’s evidence that one parent poses a danger to the child.

Ultimately, custody decisions are based on what’s in the best interest of the child, not on who filed for divorce first.

Myth 2: Filing First Gives You an Advantage in Property Division

Florida’s divorce process follows the principle of equitable distribution. This means that property acquired during the marriage is divided fairly—not necessarily equally—based on factors like each spouse’s financial contribution, earning potential, and future needs.

Filing first doesn’t grant you any extra rights over property division. Whether you file first or respond to a petition, the court will evaluate your financial situation and divide assets accordingly.

Myth 3: The Petitioner Has More Control Over the Divorce Process

Filing first doesn’t give you control over the outcome of your case.

Once divorce proceedings begin, both parties have equal rights and responsibilities. The court treats both spouses fairly, regardless of who initiated the case.

While filing first allows you to set the initial tone by outlining your requests in the petition, your spouse has the right to respond and file a counter-petition, which can shift the direction of the case. Additionally, filing first won’t give you control over how quickly or smoothly the process moves; delays can happen at any stage of the divorce.

senior couple on couch with backs turned to each other

Should You File for Divorce First?

While there are few true disadvantages to filing first, there are several potential benefits worth considering:

  1. Financial Protection: In Florida, all property acquired during the marriage is considered to be a marital asset owned jointly by the two of you. Once you file for divorce, however, most of the time, any income or property earned afterward belongs to each person individually. Filing first helps establish this cutoff point, protecting your future finances.
  2. Safety Concerns: If you or your children are in danger, filing early can help protect you by triggering temporary orders regarding custody, support, and property use.
  3. Emotional Closure: Taking the step to initiate divorce proceedings can provide a sense of control and closure during a difficult time.

If you’re considering filing first, it’s essential to hire or consult with an experienced divorce lawyer who can guide you through the process and protect your interests. A lawyer can help ensure that you’re fully prepared and can assist with the complexities of property division, custody, and financial matters.

 

Ready to File for Divorce? Know Your Options

Deciding whether to be the spouse filing for divorce first isn’t easy. While filing first can provide certain advantages, such as protecting your assets and giving you time to prepare, it also comes with potential drawbacks.

Every divorce case is unique, and what works for one couple may not be the best approach for another.

At Leap Frog Divorce, our experienced divorce attorneys and family law attorneys are here to guide you through the process. Whether you need help filing your divorce papers or understanding your options, our law firm is ready to assist.

Contact us today to schedule a consultation and get the support you need.

Arthur J. Grossman J.D., LL.M., Esq

Arthur J. Grossman J.D., LL.M., Esq

AJ Grossman graduated at the top of his Florida law school class, has been trained in Collaborative Divorce, has a Master of Laws degree in Dispute Resolution, and is a Barrister member of the invite-only Central Florida Family Law Inn of Court. His aggressive advocacy on behalf of his clients provides hope and reassurance throughout challenging divorces.

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