A common myth believed by many is that filing for divorce first has some kind of effect on the outcome, giving the filer some kind of advantage; however, what your divorce lawyer will tell you is that in most cases, this is false.
While divorce attorneys agree there might be certain procedural benefits to being the spouse who files first in specific cases, who files first usually has no weight in the decision made by the family court.
Does It Matter Who Files First?
Regardless of which spouse takes the initiative to become the petitioner and file for the divorce, each case will be run the same way and each spouse given the opportunity to state their case via their divorce lawyers to the judge.
The purpose and goal of the family court, whether through appearance in court or through the negotiations and agreements presented for approval by a petitioner and their attorney, is to judge each case based on its merit and decide accordingly.
As such, who filed first typically has little relevance to anything else, especially considering many spouses choose to delay filing in the hopes of working things out before actually resorting to divorce.
Are There Times When It Is Preferable To File First?
Even though filing first typically has little to do with the outcome of an average divorce, divorce lawyers do find that in instances where someone is at risk which means that being the first to file can have its advantages.
Spouses who file first when there is abuse of some kind happening in the relationship or feel that the other spouse may try to hide, control, or disperse marital assets illegally have the upper hand in seeking legal protection from the court.
They are more easily able to get a temporary restraining order for their protection and/or the protection of their children or file a motion to prevent a co-parent from leaving the state with the kids plus the court may also insist on certain protections over marital property and finances.
Other Pros and Cons to Filing First
While being the spouse who retains a divorce attorney and files the paperwork first will not affect the outcome of the divorce based on its merit, there are some other pros and cons to be aware of when deciding when to file.
On the negative side, the filer is responsible for paying the filing fees which could be a few hundred dollars.
On the positive side, the filer is able to do so in their county and choose the date of the first hearing, which is more convenient.
Additionally, by filing first spouses have the opportunity to prepare with their lawyer ahead of time for the upcoming negotiations that will take place as opposed to being the spouse who is served papers without advance knowledge of when it will happen.
Of course, the spouse receiving papers then has the ability to declare whether to plead fault or no-fault in their response, although this decision can be modified later if necessary.
Filing First Does Not Affect The Merit Of A Divorce
Texas divorces are negotiated and approved based on the merit of each individual divorce case and the circumstances around them.
Although there are instances where it is beneficial in certain ways to be the spouse who gets a divorce lawyer and files the papers, this has no bearing on the actual merit of the case.
The family court in Texas will hear each spouse’s argument and make the fairest decision based on the specifics presented and nothing more.
Spouses who have concerns about abuse, marital property dispersal, or keeping the hearings closer to home should discuss it with their divorce attorney ahead of time and decide whether these reasons suggest that filing first would still be advantageous for them.
Schreier & Housewirth Family Law
1800 West Bowie Street, Suite 200-E
Fort Worth TX 76110
Gregory L. Housewirth is a Board-Certified Family Law Specialist practicing in Fort Worth Texas. With 30 years of family law experience, Mr. Housewirth has represented hundreds of clients in divorce, custody, CPS, modification, and grandparent cases. In addition, Mr. Housewirth is a qualified family law mediator and a member of Collaborative Law Texas, a practice group dedicated to promoting collaborative divorce in Texas.