Whether you’re considering filing for divorce from your spouse or you’ve received a divorce petition from a spouse, one thing you might need to know early in the process is how much it matters who files for divorce first. Does the spouse who makes the first legal move have any significant advantages, or is it better to wait for a spouse to take the first action and then respond?
Divorce proceedings in California are both legally and emotionally complex. It’s often difficult to untangle emotion from the pragmatics of a legal proceeding, and one of the earliest impacts of that complicated process is navigating the very beginning of a divorce by deciding who should file for divorce first.
Petitioner Vs. Respondent in the Divorce Process
The spouse who initiates the divorce proceedings becomes the petitioner in the divorce process. A petitioner must file the paperwork within the correct jurisdiction. Typically an experienced Los Angeles divorce attorney advises and represents them during this process. After it’s filed, a copy of the petition is legally served to the other spouse who becomes the respondent in the divorce. After they are served, they must respond within the specified time limit—typically 30 days. Failure to respond to a divorce petition results in a default divorce in which the respondent has no voice in any of the divorce orders such as child custody, child support, and division of marital assets.
The way spouses determine who petitions and who responds varies. In some cases, they decide together and in others, a spouse might file for divorce first without the other spouse knowing until they receive the petition, this is especially common when one party wants the divorce and the other doesn’t, or in cases of domestic abuse.
Does it Really Matter If I’m the Petitioner or the Respondent in My Divorce?
Ultimately, deciding who files for divorce first can be either a personal or a pragmatic decision, or it could be both. Some spouses feel as though filing first makes them the “bad guy” and the other spouse “the victim,” while others believe filing first makes them the bold party in the divorce and helps them to feel more in control of the situation.
If both parties agree to the divorce and plan to cooperate on drafting their own divorce agreement for an uncontested divorce it really makes no difference which spouse petitions and which one responds; however, many attorneys point out that in contested divorces with one or more serious issues at stake, filing first has some advantages.
The Advantages of Filing First in a Contested Divorce
If a divorce has one or more issues of contention, such as matters of child custody, child support, spousal maintenance, or the equal division of marital property, many experienced attorneys agree that filing first as the petitioner in the divorce process offers some advantages, including the following:
- The petitioner proactively lists their desired outcomes for all issues in the divorce agreement, while the respondent merely responds to each demand with counter-arguments and demands of their own
- If you have children, filing first puts you in a position to arrange the temporary parenting/custody schedule and ask for temporary child support and spousal support when appropriate, as well as maintaining residence in the family home to minimize upheaval to children
- By filing first, you’re in a better position to protect your assets since your attorney can advise you on this. Once your spouse receives the petition, an automatic temporary restraining order goes into effect to freeze assets other than what your spouse requires for normal expenses
- Since the petitioner files first and lists their demands, they are also the first to present their case in court, leaving the respondent in a more defensive position
If you’ve decided that divorce is the inevitable end of your marital journey, you should speak to a qualified family law attorney about your options and discuss whether or not filing first holds significant advantages in your unique case.