Ending a marriage is tough.
Even when you know it's the right call, the whole divorce process is an emotional rollercoaster. You've got to work through many logistical challenges, too, as you legally untie the knot from your spouse.
One key question you'll agonize over is whether to file for divorce before your partner does. I know you're wondering if doing so gives you any advantage or increases your chances of getting more of what you want in the final divorce settlement.
The short answer is, as with most things in life, it depends on your unique situation. Being the first to file the paperwork (known as the petitioner) has some real benefits and a few potential drawbacks.
Let's discuss the pros and cons of being the first party to file for divorce together so you can make the right choice.
The Good Stuff About Filing First
Filing for divorce before your partner can work in your favor in a few ways:
You've Got Time to Get Ready
When you initiate divorce, you have time on your side to get fully prepared before serving those papers. You can:
- Gather up critical financial records
- Interview lawyers and pick the best one for you
- Save up money to cover attorney fees and court costs
- Collect personal belongings you want to keep
You aren't frantically scrambling to get your stuff together after being blindsided. You're in the driver's seat and can take time to get organized thoughtfully.
You Shape the Temporary Orders
In the early stages of divorce, the court puts some temporary rules on urgent issues that can't wait until the final orders. For instance:
- Who gets to live in the house
- A custody schedule for the kids
- Monthly support payments
- Who pays which debts
As the petitioner, you request the terms you want on these temporary orders. Your spouse responds to your requests rather than making their own.
You Could Stop Sneaky Asset Grabs
I wish this weren't a concern, but sometimes spouses try to hide money or property when they hear that divorce may be coming. Filing first prevents your partner from illegally emptying accounts, transferring assets, or concealing valuables before they can be divided fairly between you.
You Pick the State Laws
If you and your spouse live in different states, where you file affects how assets are split up and other legal specifics. Some states have laws that favor you more than others regarding things like alimony calculations.
You keep control over which state's laws will govern your divorce if you file first before your partner can. You get to pick the location that will work best for you.
The Not-So-Great Parts of Filing First
Despite the perks we just covered, filing for divorce first also has some potential disadvantages to think through:
You Show All Your Cards First
In many courts, the petitioner must present their side of the case during hearings. That means laying out your entire argument while your spouse listens in and takes notes.
They can then tweak their own cases and responses to counteract what you just presented. Going second gives them an edge here.
You Look Like the "Bad Guy"
Even if the divorce is mutual, or your partner did something terrible like cheating, by filing, you become the one seen as initiating the breakup. Some friends and family will take your spouse's side and say you should have worked harder to save the marriage.
Being deemed the one to rock the boat can cast you in a negative light from the get-go.
You Might Lack a Clear Strategy
In the pain of a crumbling marriage, some people file for divorce hastily without thinking it through as a legal strategy. But if you try to do it first without a solid game plan, you're unlikely to get your ideal outcome.
When filing for divorce, acting rashly could backfire. Take your time to build an intelligent case.
You Can Appear Over-Eager
Even if the relationship is 100% over, appearing too gung-ho about "winning" or getting even can undermine you. The person who comes across as calmer often wins favor from the court.
Important Factors to Consider
Before acting as the petitioner, reflect on:
Your Support Crew
Who's got your back? Do you have people who will understand why you're choosing to file first and cheer you on? Or will family and friends turn against you as the "bad guy" who initiated the divorce rather than trying harder to save the marriage? Lacking a support crew may be a sign to wait to file.
Details of Your Case
If your partner cheated or otherwise behaved terribly, filing right away points that out from the very beginning. But if your split is relatively low conflict, you won't gain much by rushing to file before them.
The State Laws
Consider whether your state follows community property or equitable distribution laws, especially if you and your spouse live in different states. The legal impacts may influence your choice to file first or wait.
How Prepared You Are
If you've got your finances in order, a lawyer ready to go, and a clear case strategy, filing first could be smart. But if you file first and are disorganized and unprepared, it may ultimately hurt you. Only file if you're ready for battle.
Your Spouse's Character
Do you reasonably trust your spouse won't try any shady business, or is the trust broken? If they may hide money or assets, filing for divorce quickly could protect you financially. But if you think they'll stay ethical, there's less urgency to rush.
Consider these factors objectively to decide if you should pull the trigger on filing first or if that move might leave you worse off. There’s no one “right” choice for everyone.
Making Your Choice Wisely
As you decide whether to file first, don't approach this from a place of anger or rush into divorce hastily without considering the big picture. Here are my tips:
- Talk to a lawyer—Discuss the pros and cons with a legal professional, so you have expert input before deciding.
- Separate emotions from logic - Get centered so intense feelings don't drive your choices. Stick to rational thinking.
- Know your top priorities - What matters most to you in the divorce - assets, child custody, etc? Let your priorities guide your decision-making.
- Learn the law - Research divorce laws in your state to know what to expect. Information reduces stress.
- Stand in your worth - You deserve fairness, compassion, and to be heard. But also bring ethics, flexibility, and care for your soon-to-be-ex.
Moving Forward with Confidence
However, you got here; ending a marriage is downright brutal. Even with the benefits of filing first, the wisest path is to make calm, thoughtful moves based on your unique situation.
By identifying your priorities, consulting experts, and understanding the law, you can gain the clarity and confidence you need to file first or let your partner make the first move. This significant life change will reshape your world, so tread carefully and intentionally each step of the way.
Whether you or your spouse files those initial divorce papers, you've got this! With planning and support, you can overcome this hurdle on the road to a brighter future.
Disclaimer:
The content provided on this blog is for general informational purposes only and is not intended to constitute legal advice. Laws and regulations are complex, frequently subject to change, and may vary depending on jurisdiction. As such, readers should not act upon or rely on any information presented on this blog without first consulting with a qualified and licensed attorney who can address and tailor guidance to your unique legal circumstances.
