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Does it matter who files for divorce first?

Does it matter who files for divorce first? The short answer is yes, it can impact how the divorce process will play out in several key ways.

evident Editorial Team
March 7, 2024
Sprinter in starting blocks

Tom Brady and Gisele Bundchen are getting divorced. But who filed for divorce first, Tom or Gisele? And does it matter who filed for divorce first?

In this article, we'll explain the strategic advantages and potential downsides that come with being the person to file for divorce first, plus an important lesson to be learned from Tom and Gisele's divorce.

So what are the benefits and potential disadvantages of filing for divorce first? Who should file for divorce first? Read on to learn about how being the person to file for divorce first does, and does not, affect the divorce process.

Key Takeaways

Does it matter who files for divorce first?

Yes, being the first person to file for a divorce impacts how the divorce unfolds in several important ways. But keep in mind there are both pros and cons to being the person who files for divorce. 

And who files for divorce first will not by itself dictate the outcome. You are not more likely to win child custody, for example, simply because you filed before your ex.

Filing for divorce

An individual files for divorce by submitting legal paperwork to the courts and notifying their spouse. The spouse to file for divorce first is called the petitioner, and the spouse who does not file for divorce first is called the respondent.  

There are typically filing fees associated with initiating the legal process, though the specific fees vary depending on state and local laws. There will also be a fee associated with serving the paperwork on your spouse.

Are there benefits to filing for divorce first?

Yes, there are some benefits to filing for divorce before your spouse. Being the person who initiates divorce proceedings gives you more control over the timing of the process as well as the location where it takes place. 

But there can be some disadvantages of filing for divorce first to consider as well. Here are some of the main consequences of being the person to file for divorce first.

Choice of court (and location)

One of the primary advantages of filing for divorce before your ex is the ability to choose where to file for divorce. Laws vary by state, but the spouse who files first has the opportunity to decide the venue (aka the court and therefore the location). 

Keep in mind that you do not have a totally free choice of where to file for divorce. States generally have residency requirements for filing for divorce, and a court will typically prevent either spouse from filing for a divorce in a specific state or county that might favor one spouse over the other. But as long as you meet the state's residency requirements and follow local laws, choosing the location can still be a big advantage.

Here’s an example: say you are filing for divorce in Ohio. If you and your spouse live in different counties, there may be multiple counties in which you could file for divorce in Ohio. Filing first allows you to choose the venue that is more convenient for you rather than your spouse getting to dictate where the divorce proceedings will unfold.

Control over the timing of the divorce

Typically, the spouse that files for divorce first has more control over the pace of the divorce. Most notably, if you file for divorce first, you have dictated when the court proceedings begin, whereas your spouse now has to respond according to the court’s timeline.

The court and local laws will dictate much of the timeline from that point forward, but it can still be helpful to control when divorce proceedings begin. 

Opportunity to properly prepare

Related to the timing, filing for divorce allows you to prepare with a divorce attorney. And not only does this allow you more time to strategize with your attorney, but you’ll also have more time to gather relevant information such as financial records, property records, and communication records (such as texts and emails).  

Property division during a divorce can be contentious and high stakes. Providing all of your financial records to your divorce attorney will allow them to best guide you throughout the process. 

First chance to request temporary orders

The petitioner (the person who files first) gets the first opportunity to request temporary orders while the divorce is pending. In fact, they can make requests for temporary orders prior to notifying the other spouse of the divorce filing. 

Examples of temporary orders include:

  • Limiting each spouse's ability to alter marital assets or property
  • Protecting one spouse from the other
  • Awarding temporary child custody or temporary child support
  • Granting temporary spousal support 

Non-filing spouses also have the opportunity to request temporary orders, but they cannot make their requests until after they have responded to the divorce petition.

First to present their side of the case

The petitioner must include information such as the grounds for the divorce with their initial paperwork, which will be the first info the court sees about the divorce. Additionally, the petitioner would present first in a trial. 

But keep in mind, the flip side to going first is that your spouse gets to see and respond to the arguments and information you present.

Other Things to Consider

When you are first to file for divorce, you will probably get the first choice of divorce lawyers. It is a conflict of interest for a divorce lawyer to speak to your spouse if you have already consulted with them. Filing first allows you to have the opportunity to choose the best representation. 

Depending on where you live, there may or may not be a large pool of experienced divorce attorneys to choose from. Having the right attorney can make a huge difference in the outcome of your case, and having the first choice of divorce attorneys can be a strategic advantage. 

Additionally, if you are the first to file for divorce, you should have more time to find additional forms of support for yourself and your children. Going through a divorce is stressful. You may benefit from resources such as therapists or financial planners to help alleviate additional stressors in the divorce process. Planning ahead ensures that you have time to find (and the first choice of) these resources.

Disadvantages of Filing for Divorce First

We've covered some of the benefits of being first to file, but are there disadvantages of filing for divorce first? Yes, there are two main potential disadvantages to being the person who starts the divorce proceedings. 

First, as noted above, the flip side to making the first impression is having to show your hand. When you file the paperwork for divorce, you will have to state your demands (that is, state what you want from the divorce). It can be delicate to strike the right balance in your demands, and sharing them gives your ex a concrete reference point to respond to.

Second, a marginal additional cost is associated with serving the complaint on your spouse. To properly serve your spouse with divorce papers, you will need a process server which typically costs around $100. (In fairness, though, the additional $100 will likely be a drop in the bucket compared to the cost of a divorce lawyer or the impact of and dividing marital property). 

Potential For Escalating Conflict

divoring couple

Another potential disadvantage of filing for divorce first is the risk of escalating conflict unintentionally.

As Scott Levin of San Diego Divorce Mediation and Family Law explains, "Filing first can trigger a defensive reaction from the respondent, depending on how the initial filing is prepared. If the initial filing is prepared by an attorney, often the client does not fully comprehend what is contained in that filing. If the attorney takes an aggressive stance for full custody, or for the respondent to pay the attorney's fees for the petitioner, or for a request that the respondent waive spousal support, etc., these positions can trigger the non-filing party and make them respond in a way that escalates the conflict. So, essentially, the petitioner can unknowingly heighten the conflict if they aren't careful, even without their knowledge."

So, if you find yourself asking, "should I file for divorce first?" it's important to weigh both the possible benefits and disadvantages of filing for divorce first when considering your options. An experienced family law attorney can be a great resource if you're unsure of how to proceed with a divorce case.

Joint Filing As an Alternative

Ideally, you are not in a contentious divorce where the main goal is to get the upper hand on your ex. Depending on the state, you and your partner may be able to file a “joint” divorce petition. In some states, this is called an uncontested divorce.

In a joint filing, the spouses create a divorce settlement agreement which they file with their petition. This process is generally more straightforward and efficient than a contested divorce process, thus saving time, money, and headache. 

However, uncontested divorces aren’t always possible due to a wide variety of reasons. If possible, though, it’s generally better to work with your spouse to avoid contentious legal battles where each side is trying to outmaneuver the other.

Tom and Gisele's divorce: a joint filing

Tom Brady and Gisele Bundchen took to Instagram to announce they had finalized their divorce "amicably." Tom and Giselle's attorneys will file divorce papers in Florida.

Both indicated that they had their children and their privacy in mind when making this decision, which serves as a good example of the benefits of reaching an amicable agreement with your ex.

The alternative for Tom and Gisele? Expensive legal fees from Tom and Gisele's attorneys, contentious court battles, and airing out their dirty laundry in the public sphere. Plus who knows how long a high profile divorce between those two celebrities might take. And with the world fixating on their celebrity status and private matters like how much is Tom and Gisele worth, a drawn out process would only make the process that much more difficult for them.

Instead, by working together to reach an agreement, they are able to maintain control over the process and move on with their lives without the costs or turmoil that so often comes with divorce.

FAQs About Who Files For Divorce First

Why is it best to plan for divorce first?

Going through a divorce is a stressful and challenging experience. Planning for a divorce allows you to reclaim some control over the process and avoid unpleasant surprises.

Planning ahead for a divorce process also increases your chances of reaching a favorable outcome. When you file first, you can choose the venue (court location) and the timing of the process. It likely also gives you the first choice of local divorce attorneys and other professional assistance, such as financial advisors or mental health professionals. 

But even if your spouse files first, you will benefit from having planned and prepared for divorce even if you did not initiate the divorce case.

If I file for divorce first do I get custody?

parents with child

The short answer is no, whether you or your spouse files first does not dictate who will get custody.

Child custody laws vary by state -- the child custody laws in New York are different from the laws in Ohio. But the backbone of child custody decisions, regardless of what state you're in, are the best interests of the child. State laws may vary in terms of what factors a court looks to when evaluating this question, all states' laws are focused on this issue.

Thus, there are both pros and cons to filing for divorce first, and who files for divorce first can dictate certain aspects of the divorce process. But whether sole custody or joint custody is awarded, the judge will decide based on the best interests of the child (or children) and not simply award custody to the filing spouse.

Can my spouse hide assets following the complaint of divorce? 

There are legal consequences to hiding assets, yet some spouses are prepared to take such risks to avoid proper division of community property. 

If you're worried this may be an issue in your divorce, filing for a temporary order may limit the risk of your spouse trying to hide assets. Speaking with an experienced divorce attorney throughout the process allows you to plan strategically and guard against issues like this.

The Bottom Line

So, does it matter who files for divorce first? Yes, it does, but not because judges will automatically resolve issues in favor of the spouse who files first.

Instead, many of the key impacts that flow from filing for divorce relate to procedural aspects of the case, such as dictating the timing of the divorce case and being able to present your side first. And certain benefits of filing for divorce first, including first pick of local divorce lawyers and being able to choose the venue.

But there are some disadvantages of filing for divorce first as well, and so it's important to consider any potential negative consequences of being the person to initiate the divorce proceeding.

So, who should file for divorce first? The answer depends on your particular circumstances and the dynamics of your relationship with your spouse. An experienced divorce lawyer can help you think through these issues and chart the best path forward if you are unsure of how to proceed.