Who Should File for Divorce First?

Know the Advantages of Being the First to File for Divorce

There are times in an unhappy marriage where both spouses can feel that a divorce in the near future. When you are in this type of situation, common questions include:

• Who should file for divorce first?
• Should I file for divorce first?
• What happens when you file for divorce first?
• What if my spouse files for divorce first?

So, is it better to be the first to file for divorce? Here are some of the different personal, legal and financial advantages to being the first to file for divorce in California.

Contact our team at Moore, Schulman & Moore, APC online or call today for more information. 

Who Should File for Divorce First?

California is a no-fault divorce state, which means that it doesn't really matter who files for divorce first. Since no one has to prove any "reason" for the divorce aside from "irreconcilable differences," being the first to file for divorce doesn't impact the divorce either way.

That being said, there are some pros to being the first to file, including choice of jurisdiction; being the first to present your case; being able to set aside some money for the divorce costs; having the right to withdraw your petition; maintaining the status quo; and having more of a sense of control over the situation.

Choice of Jurisdiction

Being the first to file for divorce allows you to choose what location the divorce will be adjudicated. If you and your spouse live in different areas, both of which have proper jurisdiction, it could be helpful to not have to travel to their location for court proceedings.

Also, different places have different rules towards aspects such as child custody, child support or division of marital assets. It is highly recommended to look into the laws pertaining to both places and see which would be more beneficial to you. It is also important to know that a case must be filed in the proper jurisdiction, which our attorneys can help you determine.

First to Present

If you file for divorce first, then you can be the first to present your case in court. This can allow you to calmly share your experiences and evidence without having to immediately respond to what your spouse says. You will also often have the opportunity to rebut what your spouse says after their presentation.

Money Aside

If you predict a divorce in the future, it is important to set aside money to be prepared for legal fees and any support you need. You should also make sure to have a credit card in only your name since it could be more difficult to do later on.

Withdrawal of Petition

The first person to file for divorce is also given the right to withdraw the petition if necessary. Sometimes you realize that it is not the right time for a divorce; perhaps you and your spouse decide to work on the marriage instead or the stress becomes too inconvenient.

Status Quo

If you and your spouse have children together, filing first will also allow you to maintain the children's schedule and where they live until a later court date. This way the other spouse cannot make unwanted changes in the child's life before the divorce is filed. The court decides the status quo during the time the motion is filed.

Personal Power

On top of the legal and financial benefits of filing for divorce first, it can also provide personal ones. Going through a divorce is a stressful and hurtful time. When you file first, you can feel as though you have control over the situation and the ways you want to change your life. We at Moore, Schulman & Moore, APC, are here to guide you through the whole process.​

Turn to a Team of Experienced Legal Professionals in San Diego & Del Mar

It is also helpful to already have a divorce team lined up. Finding the right lawyer is a difficult and timely process. If you already have your attorneys set, you won't waste any time in being prepared and knowing what legal steps you need to take. If you are not prepared, your spouse could meet with the lawyers you are interested in before you get the chance. This would establish an attorney-client relationship and make that attorney off limits to you.

Contact us online or call (858) 492-7968 today for more information.