Is There an Advantage to Filing First?

The short and simple answer: It depends! I realize this is a vague and less than straight forward answer, but the truth of the matter is that each case is different and depending on the facts of your case it may be advantageous to file first and in other instances, it may make no difference.

By way of example, it may be advantageous to file first IF you have concerns that your spouse may become angry when he/she discovers that you have filed for divorce, if you are fearful that he/she may retaliate by depleting joint funds or moving assets, and/or if you are fearful that your spouse may stop paying for expenses maintained during the marriage. In that instance, you may file an Ex Parte Mutual Restraining Order and/or an Ex Parte Order to Maintain the Status Quo in conjunction with your Complaint for Divorce. An Ex Parte Mutual Restraining Order, if granted by the Judge, would prevent either party from depleting, concealing, or moving assets without the knowledge and consent of the other party. An Ex Parte Order to Maintain the Status Quo, if granted by the Judge, would maintain the status quo practiced by the parties during the marriage, such as the payment of various living expenses.

Another reason that you may want to file first would be to have your counsel, if you retain counsel, draft your final piece of documentation, known as your Judgment of Divorce. Traditionally, the party that files first, known as the Plaintiff, has their attorney draft the Judgment of Divorce. If your counsel and your spouse’s counsel agree, however, your spouse’s counsel, otherwise known as the Defendant’s attorney, may be permitted to draft the Judgment of Divorce in which case filing first would be a moot point.

If you and your spouse are amicable and have discussed filing for divorce, then it may make no difference who petitions the Court first. Again, it depends on the facts of your case. If you do, however, have concerns that your spouse may retaliate once he/she is served with the Complaint for Divorce, consider speaking with an attorney to best determine your options and whether filing first will be advantageous in your case.