Filing for Divorce - Who Goes First?

Filing for divorce is a monumental decision. For many, deciding whether to be the one to file can feel overwhelming. Circumstances vary widely but, in my experience, husbands tend to file for divorce more often and it’s generally a 50-50 split between spouses who are blindsided by the divorce filing and those who had an inkling it was coming. Regardless of who files first, the decision should align with your circumstances and strategy. While every situation is unique, here are some key factors to consider when determining whether you should be the one to initiate divorce proceedings.

• Advantages of Filing First
• When Filing First is Optimal
• Disadvantages of Filing First

Advantages of Filing First

There are several advantages to being the spouse who files first:

1. Control the Narrative When you file first, you are the plaintiff in the case, which gives you the opportunity to present your side of the story first in court. This can be particularly impactful if your case involves serious allegations of misconduct. You’ll also have the last word during court proceedings, allowing you to re-emphasize your position.
2. Preparedness Filing first allows you to be proactive rather than reactive. You have the time to gather the necessary documentation, prepare your case, and strategize with your attorney. This readiness can give you an edge, particularly if the divorce involves complex financial matters or custody disputes.
3. Setting the Tone By filing first, you can set the tone for the divorce proceedings. This may discourage the other party from dragging out the process or engaging in excessive conflict, as they know you’re pushing forward.

Filing first can provide strategic advantages, particularly if the case involves misconduct or is likely to go to court.

When Filing First Is Optimal

Filing first may be beneficial if you’re on the receiving end of bad conduct, such as adultery, addiction, or abuse. While you may not need to go to court, it can strengthen your position if you do. Since we would have the first and last word, I use that strategically. The first word will be about emphasizing the bad behavior, while the last word will be used to re-emphasize the behavior and justify what we’re asking for. Even if the case settles before trial, taking the initial step demonstrates that you are serious about ending the marriage and pursuing a fair resolution.

Disadvantages of Filing First

From a legal point of view, there are really no disadvantages to being the one who files for divorce. The primary consideration is whether you’re emotionally and logistically ready to move forward. If you’re not prepared, you can always dismiss the case and refile if you decide to proceed later. It's not a bad thing for somebody to be indecisive about wanting a divorce. Judges understand that this is a significant and emotional decision and will not hold it against you in court, should your case end up in litigation.

Final Word

Filing first can provide strategic advantages, particularly if the case involves misconduct or is likely to go to court. If you’re considering divorce, don’t rush the decision. Determining when to file should be based on careful consideration of your unique circumstances and goals. Reach out to a trusted divorce lawyer who can help you weigh your options and develop a strategy that protects your interests.