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Does it really matter who files for divorce first?

Hi, everyone. I’m A.J. Grossman, CEO and Managing Attorney with LeapFrog Divorce. My entire legal career has been dedicated to helping people with divorce and paternity cases. At LeapFrog Divorce, we do divorce better.

Okay, let’s go.

So, who should file for divorce first? It may be important in some situations, and most of the time, it doesn’t matter.

So when can it matter?

First, let’s define some terms. The person who files first is called the petitioner. The other spouse is called the respondent.

If you and your spouse are proceeding with what we call an uncontested divorce, basically, you and your spouse agree on everything, and you have a judge assigned to your case who requires a personal appearance at a final hearing, the petitioner, the one who files first, is the one required to physically appear at the final hearing.

Some judges are doing final hearings virtually using something like Zoom or Microsoft Teams, while other judges are requiring physical, in-person appearances at the courthouse.

So if you are the petitioner, you may need to take time off from work, travel to the courthouse, pay tolls, and find parking.

If you and your spouse need a trial to have the judge decide certain issues, like parenting or alimony, the petitioner is the one who gets to present their side of the case first.

If you believe that first impressions matter and that telling your story first is an important advantage, then you might want to be the one to file first.

Divorce filings are public record. This means that any member of the public can view the documents filed in your divorce. Potentially, your children or other family members can look at those documents at any time in the future.

So when your children grow up and become adults, they may want to look at the documents filed. Will it matter to you if your child sees that you were the one who filed or asked for the divorce?

The reason to file for divorce first is to establish a date that the judge can use to determine what property and what debts are marital and what are separate.

The date a Petition for Divorce is filed can be very important.

Let me give you a quick example.

If you decide to wait for your spouse to file for divorce, and your spouse decides to incur additional debt, like a personal loan, the judge may determine that the debt should be categorized as marital.

What this means is that you, the spouse who did not file, will probably be on the hook for paying the whole debt or some part of it.

So filing a petition for divorce draws a line in the sand that can indicate to the judge that all the assets acquired and debts incurred before that date are marital, and everything after that date should be considered separate or non-married.

That’s all for now. I hope this information is helpful for you. If you have any questions or need help, please give me a call or send me an email. I’d be happy to help.

Have a wonderful day.