It’s a question many people consider: should I go ahead and file, or wait for him/her to file?
While statistics still bear out that women initiate divorce more than men do, it doesn’t necessarily mean that men won’t file a divorce petition, either. If you and your spouse have agreed that the marriage isn’t working out, and it’s time to call it a day, should you file, or should you let your spouse do it? The answer really depends on the case itself, and what you want for yourself and your children.
In Fort Worth and in Texas, what matters is what both parties have at stake rather than who files first. The advantages tend to be tactical, rather than legal. The judge must consider the statutes that govern the case.
Advantages Of Filing For Divorce First
If you have the idea that by filing first you will “get your day in court and get justice,” understand that most divorce cases don’t go to trial.
- Set the tone. By filing first, you will have the advantage of setting the tone for the divorce. That is, you can file on fault grounds, or file a no-fault uncontested divorce, although these can be changed later if needed. If you’re hoping that the situation is resolved amicably and easily, you may have more control over that happening by filing first. However, the respondent can change the type of divorce and contest it if they want to.
- You’ll have your team assembled. Should you decide to initialize the proceedings, you’ll be able to start when you decide the time is right.
- File when you’re ready. That is when you are in a better financial place, as well as emotionally ready to do so. You’ll be able to meet with your lawyer proactively instead of reactively, and schedule meetings that work for both you and your legal counsel.
- The home-field advantage. By filing first, you can choose what county where you’d like the divorce to be held. If your spouse lives in a different county, he or she will have to return to the county where the divorce is filed. If your spouse moves out of Texas to a different state, and you meet the requirements of six months in state and three months in county, state law may be an advantage. If this is the case, the ideal is to find a local family law attorney who knows local judges and how they work.
- Stop any disposal of assets or fleeing with children. Filing first puts a stop to the other spouse hiding, stealing, or spending any money or other assets, or taking the children and moving out of state. Filing first allows you to request a Temporary Orders Hearing to set out how both parties behave during these proceedings, as well as issues related to custody and visitation, spousal and child support, residency, expense, and other issues.
However, because child conservatorship (custody) is handled separately, there is no advantage to filing first.
Disadvantages Of Filing For Divorce First
If cost is a consideration, and you file first, chances are your costs to file the initiating petition are going to be more than a respondent. Filing for divorce can run about $300 or more, whereas responding to a petition or filing a counter-petition can run anywhere from free to as much as $50 to $100.
However, as the defendant, you will still have an opportunity to file a response and file a counter-petition in court. In fact, because the petitioner gets to speak first, you’ll have opportunities to respond, and speak last, rebutting the spouse’s allegations and having the last word.
When you file first, you’ll give your spouse a list of all the requests and demands that you’re making. You’ll be negotiating later, so make sure that you ask for more than what you’re interested in having so you don’t undercut yourself and end up with too little.
Another disadvantage is if your spouse files in a different county. Depending on where he or she is, you may have to make long trips in order to get to court, requiring long drives, flights, and taking time off work.
Fort Worth’s Compassionate Divorce Attorney
Wendy L. Hart is an experienced family law attorney helping people throughout Tarrant County who need help in a divorce. As a divorcee herself, Wendy understands the process as well as the difficulties involved. We represent both men and women. We’ll make sure you’re treated fairly and will protect your interests and your children.