Two Advantages to Filing First for Divorce & Two Misconceptions
Orange County Divorce Attorneys Provide Pro's & Con's
The following information is not meant to be legal advice. It offers alternatives,
tips and resources for those with no means to hire an attorney.
The Main Advantage To Filing First For Divorce Is That You Get To Put Your
Case On First At Trial.
- First, some vocabulary. The name given to the spouse that files first for
divorce is the “Petitioner”, and the spouse that files second
is called the “Respondent”.
The clearest advantage to
filing for divorce first, is that that at trial, the Petitioner has to present his/her evidence
first. Thus, the Petitioner has the advantage of being able to decide
which witnesses to call first at trial, and the order in which they will
- For example, if Respondent is a liar, Petitioner may decide to call Respondent
as the first witness. Respondent will then be forced to commit to his/her
testimony before he/she hears other witnesses testify. This will prevent
Respondent from changing his/her testimony to improve his/her case depending
upon the evidence presented at trial.
This advantage is not big enough to rush your divorce.
- If you think your marriage might be salvaged by marital counseling, then try it.
If you think that it would be better for your children to postpone the
divorce until a certain date, then do so.
- For example, some parents will agree to wait to file for divorce after
their child who is a senior student in high school goes away to college.
To Gain Jurisdiction In The Best Court Location:
- In some instances, there may be more than one court location where the
divorce case may be properly filed. In such instances, it might be to
your advantage to file first to make sure the case is filed in the court
location that is most convenient for you.
It Does Not Make You More Righteous To File First For Divorce:
California is a “no-fault” state when it comes to divorce or
legal separation. It does not matter if you are filing for divorce because your spouse
cheated on you, or because you just don’t get along anymore. “Fault”
is generally not a factor in determining
spousal support (alimony),
child custody, or
division of property.
- Therefore it does not help you to be called the “Petitioner”,
nor does it hurt you to be called the “Respondent”. This is
not like being called a “Plaintiff” or a “Defendant”
in a personal injury case.
The Wrong Reason to Postpone Filing for Divorce:
- Some people wait for, or encourage the other spouse to file for divorce
first, so the children will blame the parent who filed first for the failed
marriage. This is bad judgment.
- If you have already tried marital counseling and your marriage is still
toxic, your children will probably be psychologically better off, and
are more likely to develop into well-adjusted adults, if you are divorced.
- A parent should never tell the children that it was the other parent that
filed first for divorce, or caused the marriage to fail. It is best for
the children if you involve them as little as possible in the divorce,
and if you only speak well of the other parent in their presence.