Does It Make a Difference Which Spouse Files for Divorce First?

For the most part, it doesn’t matter who files a Texas divorce case – you or your spouse. You both have the right to assert your rights and defenses. These rights and defenses include contesting the grounds for divorce, the division of the property, spousal support, child custody, and child support.
The benefits of filing first are mostly psychological and procedural. Each case is different. An experienced Texas family lawyer will explain the pros and cons of being the person who files the divorce case.
The psychological benefits of filing first
The psychological benefits include the feeling of control. By filing first, you’re making a statement that it’s time to end the marriage. If you rely on your spouse to file first, well – he/she may never file because they want to hold on to the dream the marriage can be saved.
By filing first, you have the time to prepare yourself emotionally. The spouse who responds to your initial filing must move quickly to assert their rights.
The practical advantages of filing first
If the case is tried before a judge, then the person who files first gets to testify and present evidence first. The advantage of being first is that you get to set the initial impression that the family judge hears. The disadvantage is that sometimes the last words the judge hears (from the spouse who goes second) have more impact. A lot depends on the judge.
By filing first, you are the spouse who can request the hearings on any temporary order hearings and on resolving each part of the case – the divorce, property division, and related issues. This means you can in some ways control the speed at which the case comes to a resolution.
The first person to file also has the right to request temporary orders. The other spouse can request temporary orders too. While the divorce is pending, spouses can request temporary spousal support. An order of temporary support helps ensure the marital bills are paid while the divorce is pending. A temporary spousal support order also helps ensure the more affluent spouse can’t take advantage of the poorer spouse – by using economic pressure to force a settlement.
Texas also authorizes temporary orders for custody and child support. If the spouses live apart, it is critical that you and your spouse either reach an agreement or there is a court order to direct where the children live, where you live, and how much the parent who doesn’t have temporary custody pays for support. If there is an issue of abuse, then temporary living arrangements and support orders for both you and the children are a priority.
Another key advantage to filing first is that you have more time to review all your marital interests with an experienced family law attorney. There’s generally no time limit on when you must file for divorce once it is clear the marriage is over. There are time limits on when the spouse who responds to a divorce action must provide his/her answers and must file any counter-claims. Having the time to prepare gives you a leg up on your spouse.
By filing first, you may be in a better position to determine which assets are considered marital property and which property (including bills) are considered separate property. The date of filing of the divorce papers generally determines the dividing line between marital property and separate property.
Another consideration in deciding whether you should file first is determining where the case is heard. If you and your spouse live in different counties, then the person who files first generally controls which county hears the divorce case. It’s more convenient for you if you file in the county where you live. There may be other advantages to filing in your home county, too – such as that the court procedures may be better for you in one county than in another county.
Court costs
The main disadvantage of filing first is that, generally, the person who files first has to pay the filing fees. This includes the fee for the divorce action and the fees to request temporary orders. The filing fees can be several hundred dollars.
Discuss with an experienced Texas family lawyer when you should file for divorce
It’s never easy to decide to file for divorce. In addition to the emotional issues involved with ending a marriage, there are many legal issues to consider. Our caring, skilled family lawyers guide spouses through every phase of the divorce process, including deciding when to file for divorce. At Lyttle Law Firm, our Austin, San Marcos, and Central Texas family lawyers understand how difficult it is to take the first step in filing for divorce. We represent spouses and parents who live in Travis, Hays, Comal, Williamson, Bell, Caldwell, Burnett, Llano, and Guadalupe Counties. Call us at 512.215.5225 or fill out our online form to schedule an appointment.

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