Does it Matter Who Files for Divorce First?

person putting wedding ring on table
Feb 2, 2024 | Content

People contemplating divorce sometimes ask, “Does it matter who files for divorce first?”  There are some potential benefits to being the first to file, but the facts of the case determine whether the benefits are particularly valuable. If your spouse filed first, working with a skilled legal professional can ensure you are not at a disadvantage.

Whether you are considering filing for divorce, or you have received service of your spouse’s petition, contact a local family lawyer immediately. An experienced attorney can support you through the process and help you meet your goals.

Filing First Sets the Tone

When you file for divorce first, you state legal grounds entitling you to end your marriage. The legal grounds for divorce appear in the Official Code of Georgia § 19-5-3. They include several fault-based grounds like adultery and cruelty and the no-fault ground of irreconcilable differences.

If you choose a fault-based ground, it shows your spouse and their attorney that you intend to prove their conduct led to your divorce. Proving fault can benefit you if you believe your spouse will ask for alimony, and sometimes judges award the innocent spouse a larger share of the marital property. But citing a fault-based ground also usually makes the divorce more contentious than need be, which might mean it takes longer and increases your legal fees.

Regardless of whether you choose fault-based or no-fault grounds, your spouse can counterclaim and cite fault-based grounds against you. You should have a candid conversation with your attorney about whether you and your spouse have evidence to ask for a divorce on fault-based grounds and if so, whether it makes sense to cite fault in your specific case.

Filing First Protects Your Assets

Divorce petitions typically ask the judge to issue an Automatic Temporary Restraining Order (ATRO). This is a court order forbidding both spouses from selling or manipulating martial property without the court’s permission.

If you believe your spouse might hide assets from you, sell property without your permission, or manipulate your joint assets, filing first is a good idea. Hopefully, your spouse will receive the petition before they can mishandle your marital property.

Filing First Gives You Time to Prepare

A contested divorce requires you to produce substantial documentation. Depending on your circumstances, you could require help from an accountant, tax specialist, divorce coach, and others, in addition to your divorce attorney. Filing first gives you time to gather your paperwork and assemble your team.

If your spouse files first, you have 30 days to prepare an answer with your counterclaims and submit it to the court. You might feel rushed and not have enough time to interview professionals and choose who you want to work with.

The other advantage of filing first is you know it is coming. You have the opportunity to develop your support network and introduce needed self-care into your routine before the legal showdown begins. These measures can help ensure you make good decisions as the process unfolds.

Trust a Seasoned Legal Professional to Handle Your Divorce

Filing first has no real legal advantages, but it can offer some practical and psychological benefits. People generally prefer the feeling of being in control, rather than responding to others’ actions.

Whether to file first or wait and respond when your spouse files is a personal and strategic decision that you should discuss with your divorce lawyer. Call today to schedule a consultation.


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