9 Unexpected Disadvantages of Filing for Divorce First
When it comes to divorce, many people think that they will get advantages if filing divorce first. This isn’t always the case. In fact, there are a few disadvantages of filing for divorce first.
In this post, I will discuss nine of them. Remember that every situation is unique, so these disadvantages may not apply to you.
9 Unexpected Disadvantages of Filing for Divorce First
#1. You may be seen as the bad guy or girl:
Filing for divorce first can come with a certain amount of stigma. People may see you as the “bad guy” or “bad girl” for wanting to end the marriage. They may think that you were the one who caused the problems and that you’re now just trying to save yourself. There may also be a sense of betrayal, especially if children are involved.
People may think you’re selfish and not considering your family’s needs. You may also be seen as more disgruntled or unhappy in the relationship if you are the one who files first. And while family court judges are supposed to stay neutral, being the one who initiates the case can shape first impressions.
Judges know you’re the party pushing the process forward, and that can subtly influence how your arguments are received.
#2. You could end up paying more in legal fees:
If you are the one who files for divorce first, you may end up paying more in legal fees. This is because you will likely have to file a lot of the paperwork yourself. You may have to spend more to gather all the paperwork, which is costly nowadays.
You have to bear the cost of filing fees, process server fees, and other associated costs. Because you filed first, you must serve your spouse with the Complaint for the divorce.
To properly serve your spouse, you will need a process server. Process servers costs around a hundred dollars. Your spouse doesn’t need to serve her response to your Complaint.
Additionally, if you file for divorce first and then later decide to reconcile, you may also have to pay your spouse’s attorney’s fees. It varies from state to state. Additionally, filing for divorce first can be a lengthy and complicated process. Another piece many people overlook is jurisdiction and residency rules.
To even file, you have to meet your state’s residency requirements, usually living there for a certain number of months. If you file too early or in the wrong county, the case can be dismissed, and you’ll lose both time and the filing fees. If you’re not familiar with the legal system, this could work against you.
#3. Your spouse will be altered about your demand:
Your spouse will be alerted to your demand about custody of your children, how the property will be divided, or whether you are seeking financial support for yourself, your children, or yourself and your children.This includes spousal support, also called alimony.
By filing first, you lay out those requests in black and white, which gives your spouse extra time to fight them. They might gather financial records, argue that you don’t need support, or push to limit the amount and duration.
At the first point, this can come as a shock and may cause your spouse to act out in anger or hostility. But, ultimately, they will get enough time to make proper counterdemand by denying your terms. This just makes the process longer.
#4. You may be marked as a bad co-parent:
Your spouse could use this against you in court if you have young children. They may paint you as an unstable person who is not fit to co-parent. Though it is not logical that you are a bad parent for filing a divorce first, your spouse will try to use this ground to win the child custody battle.
Your spouse may try to convince the court by saying that you are more likely to break the family just like a selfish instead of thinking about your child’s best interest. Family court judges often accept this kind of bogus logic and give the child to your spouse.
While this may not be the case, it’s important to know this is possible. You may want to consider waiting to file for divorce if you have young children.
#5. Open public record:
Another disadvantage is that your divorce will become a public record. This means anyone can look up the details of your divorce, including the reason for the divorce. This can be embarrassing and may cause you to feel like you have to defend yourself from others.
When you file first, your divorce petition immediately becomes part of the public record in family court. That means anyone from employers to curious relatives can look up the case details, including the grounds you listed, financial requests, or support claims.
In some states, even temporary orders related to custody, spousal support, or property division are visible. This can feel intrusive and embarrassing, especially if sensitive financial or personal issues are spelled out in the paperwork. Once it’s on record, you can’t control how others might interpret or use that information.
#6. It could make negotiations more difficult:
It could make negotiations more difficult. This is because your spouse may feel like they have to give in to your demands to settle. They may also be less likely to negotiate in good faith if they have no other choice. Once marital property division enters the picture, things can get even messier.
Knowing exactly what assets you’re asking for gives your spouse time to dispute values, argue over who gets what, or even try to move money around. And if both sides bring in attorneys, those lawyers may push harder for their client’s interests, which often means longer, more expensive negotiations
#7. Increased stress and anxiety:
Filing for divorce can be a stressful and anxiety-inducing process. This is especially true if you are the one who filed first. The opposition attorney might ask nasty divorce questions to increase your mental pressure.
You may worry about how your spouse will react, what will happen to your children, and how the divorce will affect your life. This stress can take a toll on your mental and physical health. On top of that, your spouse now has extra time to hire a strong divorce attorney who can build a case directly against your claims.
Filing first gives them a clear picture of your strategy, which their lawyer can use to prepare counterarguments. If you’re unfamiliar with the legal system, it might not be in your best interest to file for divorce first.
#8. The divorce process could take longer:
Your spouse will be able to make a counterclaim. This means they can file their divorce paperwork and request child custody, spousal support, or property division.
This can lengthen the divorce process and make it more complicated. Marital property division is a big reason why. Once your spouse knows exactly what assets you’re asking for, they may start disputing values, moving money, or fighting over even small items.
That resistance not only drags out the timeline but can also increase your legal expenses. It’s important to be aware of this before you decide to file for divorce first.
#9. Lost the scope of ADR:
Surprising a spouse by serving divorce papers without warning may complicate or destroy any possibility of alternative dispute resolution (ADR), such as mediation, negotiation or collaborative divorce.
It may also create added stress for children and other family members. Ultimately, this can make divorce more difficult and expensive.
Then is it better to be the first person to file for divorce? Discussion of LJ Law might be helpful:
FAQs on Disadvantages of Filing for Divorce First
Does it matter who files for divorce first?
Yes, but only in limited ways. Filing for divorce first does not guarantee a better outcome for custody, property division, or alimony. However, the spouse who files first (the petitioner) does control where the case is filed, sets the initial terms in the divorce petition, and presents their case before the other spouse responds.
This can create small advantages in strategy, deadlines, and sometimes court perception. The disadvantages are higher upfront costs, alerting your spouse to your demands, and giving them time to prepare a strong counterargument with their attorney.
In general, however, filing for divorce may give the person who files a slight advantage in negotiating the divorce terms. Even they may use this against you in the custody battle.
For example, if one spouse files for divorce and then the other spouse tries to file for divorce later, the court may decide that the first spouse is the petitioner and the second spouse is the respondent.
If I file for divorce first, do I get custody?
No. Filing for divorce first does not give you automatic custody of your children. Custody is decided by the family court based on the child’s best interests, not on who filed the paperwork.
Judges consider factors like the child’s age, health, relationships with each parent, stability of each home, and each parent’s ability to meet the child’s needs. Filing first may signal your intentions, but it doesn’t create a legal advantage in custody decisions.
If you file for divorce first, you may not necessarily get custody of your children. While the filing spouse may have an advantage in some states, it is ultimately up to the judge to decide who will have custody of the children, but women win this battle in maximum time.
Ultimately, the goal is to ensure the child has a strong relationship with both parents and safe and stable home life. This decision is not always easy, but remember that the judge’s ultimate goal is to act in the child’s best interests.
Is it better to file for divorce before or after separation?
It depends on the situation and the couple’s circumstances. Sometimes, it may be better to file for divorce before separation to protect assets or establish custody arrangements.
In other cases, it may be better to wait until after separation to allow tempers to cool and to give the couple time to reach an agreement on property division and child custody.
If the couple has minor children, it may be advisable to wait until they have separated to file for divorce. This can help provide stability for the children during a potentially difficult transition.
Additionally, if the couple can agree on child custody and visitation, it may be possible to file for an uncontested divorce, which is typically quicker and less expensive than a contested divorce.
If significant assets or debts are at stake, it may be wise to file for divorce before separation to protect each spouse’s financial interests. This is especially true if one spouse is likely to contest the divorce. By filing first, each spouse can ensure that their assets and debts are properly accounted for in the divorce settlement.
Is it more expensive to be the first to file for divorce?
Yes, filing for divorce first usually costs more at the start. The spouse who files is responsible for the court’s filing fee, the cost of serving divorce papers, and often higher attorney preparation fees.
These expenses can add up quickly. However, the total cost of divorce depends more on how contested issues like custody, alimony, and property division become, not just on who filed first.
Can filing for divorce first affect alimony or spousal support?
No. Filing for divorce first does not determine alimony or spousal support. Courts decide support based on income, length of the marriage, and each spouse’s financial situation. The only impact of filing first is that your spouse sees your request earlier and may prepare to challenge it, but the judge makes the final decision.
Does filing for divorce first make me look bad in court?
No. Filing for divorce first doesn’t make you look bad in court. Judges don’t punish a spouse for being the petitioner. Their decisions are based on evidence, custody factors, and financial records, not on who filed first.
Does filing for divorce first stop my spouse from hiding assets?
Not automatically. Filing first doesn’t prevent a spouse from trying to hide assets. However, once the case is filed, the court can issue financial disclosure requirements and restraining orders that make it harder to transfer or conceal property.
Conclusion:
Filing for divorce first can give you some control over timing and process, but it also comes with extra costs, stress, and strategic drawbacks. It doesn’t guarantee an advantage in custody, alimony, or property division—the court makes those decisions based on facts, not who filed first.
Before taking that step, speak with a family law attorney to understand how the rules in your state may affect your case. Speak with an attorney beforehand to understand the potential disadvantages and how they may apply to your situation.
