Who Should File for Divorce First: Does It Matter Really?

I know a couple named John and Jane, deeply in love, tied the knot, believing their union would last a lifetime. As years passed, however, the spark began to fade, disagreements took center stage, and they found themselves teetering on the brink of a divorce. Entangled in the complexities of their deteriorating relationship, they faced an unexpected question: “Who should file for divorce first?” 

This is a common predicament many couples face on the precipice of parting ways. Should it be John? Or Jane? Does it even matter? Join us as we unravel these questions, shedding light on the often-overlooked aspects of filing for a divorce.

Who Should File for Divorce First

Who should file for divorce first?

“Should I file for divorce first?”

This is a thorny question, and there’s no one-size-fits-all answer. It all depends on the couple’s situation and how they want to approach the divorce process. In some cases, it can even benefit both parties to file for divorce simultaneously. Generally speaking. However, it is often beneficial for one to be the first to file.

Deciding who should file for divorce first depends on a few factors, such as the legal system you are in, if there is an agreement between parties to proceed with a collaborative divorce, and the overall intention of each individual entering the process. It’s important to understand that filing first or at all can have significant consequences that differ from one state/country to another.

If you live in a no-fault jurisdiction like California or Florida, it often does not matter which party files first. In general, this means that either party can initiate their petition and proceedings without proving why they asked for it as long as both parties agree they want to split up. No-fault divorces are becoming increasingly popular because of their simplicity and lack of contentiousness associated with them.

On the other hand, those living in fault-based jurisdictions like Texas and Virginia should consider who has any valid claims against whom before deciding on filing for divorce first since certain allegations or claims could affect how assets are divided during litigation proceedings (if they reach that point). So if one spouse cheated on the other or committed fraud – those matters will need to be considered when making this decision since these acts may entitle one side to more favorable terms than what would be provided through equitable distribution laws alone.

Aside from jurisdictional issues surrounding legal ramifications associated with who files first – both spouses should also consider their financial situations before submitting paperwork initiating divorce proceedings since whatever outstanding liabilities exist must typically still be paid off regardless of how assets were divided in final settlement agreements reached by parties involved with the case (or through court rulings).

This could lead to spouses’ finances being further impacted by not satisfying past debts before launching actions related to potential splits beforehand, so coming up with a strategy tailored specifically towards your needs (that includes determining if either spouse requests spousal support) early enough so deliberations regarding financial responsibilities can take place earlier rather than later is always recommended.

In short – whether you should file for divorce yourself instead of waiting for your spouse depends largely upon where you reside along with individual circumstances surrounding your relationship dynamics; but ultimately, work together when possible – so seeking help from experienced professionals familiar with local laws can always provide greater clarity throughout the process whenever needed most!

Does it matter who files for divorce first?

Yes, it does matter who files for divorce first. While the actual filing of a petition is not necessarily the determining factor in who “wins” in a divorce proceeding, there are several things to consider when deciding who should file first.

From a legal perspective, whoever files first usually has what is known as “first choice” when it comes to seeking relief from the court. This means that that person can ask for specific orders or relief, such as child support payments before their former spouse can do so. Additionally, if one party files before the other and then reconciles with their former spouse prior to judgment, they have more leverage and potentially better negotiation options since they were already willing to proceed with dissolution proceedings despite attempting reconciliation.

Filing for divorce first also affects how each person’s taxable income is determined according to state law. Property division may be impacted by who initiated proceedings that could affect retirement accounts (how tax penalties apply) and real estate ownership costs.

In addition, whoever moves forward with dissolution procedures stands an increased chance of obtaining possession of marital property sooner than later due to court-ordered possession arrangements pending the final resolution of financial issues between parties through asset division orders or spousal maintenance awards, among other possibilities depending on facts relevant to each particular case. 

What Are The Pros and Cons of Filing for Divorce First?

Advantages of filing for divorce first: 

Filing for divorce can be a complex decision, and there are advantages to being the first to initiate the process. Here are five potential benefits of filing for divorce first:

  • Control over timing: Filing for divorce first gives you more control over when the process begins. This can be advantageous if you want to initiate proceedings at a time that aligns with your personal circumstances, such as after gathering necessary documentation or when you’re emotionally prepared.
  • Choice of venue: In some cases, the spouse who files for divorce may be able to choose the jurisdiction where the divorce proceedings will take place. This can be strategically beneficial if certain jurisdictions have more favorable laws or regulations that could impact the divorce outcome.
  • Setting the tone: The spouse who files for divorce first can set the initial tone for the proceedings. This can influence how negotiations and discussions unfold, potentially giving you an advantage in presenting your perspective and goals.
  • Preemptive strategy: You can proactively outline your objectives and goals for the divorce settlement by initiating the divorce process. This could potentially put you in a stronger negotiating position as you’ve already articulated your wishes. You don’t have any liabilities to respond to the divorce petition as filed it first.
  • First impression: Being the first to file allows you to present your story to the court before the other spouse does. This can be particularly valuable if there are specific issues you want to address or if you believe that being the first to share your perspective could influence initial impressions.

It’s important to note that while these advantages exist, they may not apply in all cases. The decision to file for divorce first should be based on carefully considering your circumstances and goals. It’s advisable to consult with a legal professional who can provide personalized guidance and help you understand the implications of your decision.

Disadvantages of filing for divorce first: 

While there can be advantages to filing for divorce first, there are also potential disadvantages. Here are five possible drawbacks:

  • Financial costs: Initiating the divorce process requires filing fees and legal expenses. Filing first means you’ll incur these costs, which can add up over time. Additionally, your overall expenses may increase if your spouse decides to contest the divorce or engage in prolonged legal battles.
  • Higher emotional toll: Filing for divorce first might position you as the initiator, which could lead to a more adversarial dynamic. This could contribute to heightened emotional stress and strain, as the other spouse might feel blindsided or hurt by your decision.
  • Rushed preparation: Filing for divorce first might require you to gather all necessary documentation and information more quickly. Rushing this process could result in overlooking critical details that could impact the division of assets, alimony, or child custody arrangements.
  • Limited response time: Filing first gives your spouse less time to prepare their response. This might make them feel rushed and potentially make decisions without fully considering their implications. Additionally, you might need to know the total process of responding to divorce papers as you don’t know anything about this issue.
  • Perceived aggressiveness: Filing for divorce first could be perceived by your spouse as an aggressive or confrontational move. This might escalate tensions and make finding common ground for negotiation more challenging.

Ultimately, the decision to file for divorce first should be made after careful consideration of your specific circumstances, goals, and potential consequences. It’s recommended to consult with a legal professional who can provide personalized advice based on your situation, helping you understand the potential advantages and disadvantages of taking this step. Whatever you do, don’t forget to keep the divorce papers in a secure place.

At this point, you may ask Should I file for divorce first? Guideline of ADAM divorce attorneys might be helpful:

How to File for Divorce in 4 Easy Ways

Determine the residency requirements in your state:

States have different rules and regulations when it comes to filing for divorce. Some states require a period of separation before filing, while others may allow a no-fault divorce. Ensure you understand all of the relevant laws in your state before initiating any action.

Consult with an experienced family law attorney:

Understand your rights and responsibilities before filing for divorce. An experienced lawyer can offer invaluable advice on the best legal strategy. Ensure you understand all the costs of hiring a lawyer before making any decisions. Money doesn’t a problem to get a divorce lawyer.

Gather the necessary documents:

To file for divorce, you must gather the relevant documents, such as financial statements, tax returns, and proof of residence. You should also make copies of any other important documents related to your marriage, including birth certificates and prenuptial agreements.

File for divorce:

Once you have gathered the required documents and consulted with a lawyer, it is time to file for divorce. First, you must complete the necessary paperwork and submit it to the court in your area. Remember all instructions carefully, as mistakes could delay the process.

After filing, your lawyer can help guide you through the various steps of the divorce proceedings, such as asset division and alimony.

Some FAQs on Who Should File For Divorce First

What happens if my husband filed for divorce first?

If your husband has filed for divorce, this means that he is initiating the process of legally ending your marriage. It’s important to understand that although a spouse can file for divorce first, it does not necessarily guarantee them an advantageous legal position in the proceedings. They actually may be disadvantaged if they are found to have engaged in any misconduct during the marriage, such as infidelity or financial mismanagement.

In most cases, both parties must agree on various issues, such as the division of assets and property rights, before the court reaches a final settlement. If children are involved in the marriage, additional considerations must be considered during either a formal or informal negotiation between spouses.

It’s also important to note that each state’s laws may dictate different procedures when filing for divorce, so seek out qualified legal advice about your particular situation to ensure all necessary steps are taken correctly and within strict time frames. 

Additionally, it’s always beneficial to try and come up with an agreed-upon plan without involving lawyers — if possible — because this will save you both money and time during what can be a problematic two-way process between spouses who were once married but now want separate lives moving forward.

Who files for divorce the most?

Research conducted by the Centers for Disease Control and Prevention (CDC) in 2017 revealed that women are more likely to file for divorce than men. In fact, among those who divorced during 2009-2017, 58% were women, while 42% were men. The most common age range for filing for divorce was 25-39 years old – with much higher filing rates among women within this age range compared to men.

Statistics from various studies suggest a correlation between education level and gender when filing for divorce. Those with higher levels of education are less likely to get divorced after marriage; however, this trend holds mainly for males since females with college degrees tended to be at equal risk as those without college degrees.  Additionally, some studies have suggested that the amount of time spent at work or away from home may contribute significantly towards stressors which could lead to a decreased marital relationship over time, leading to potential divorce filings – especially amongst male breadwinners in a family setting.

It is worth noting, however, that in some countries, there may be disparities when it comes down to legal rights associated with divorces due to socio-economic/cultural norms where women may not have adequate access or protection against any potential injustices typically regarding finances or child custody, etc., thus making them more vulnerable and increasing their chances of going through the process of initiating a divorce if needed. As such, understanding local laws and regulations concerning personal relationships and marriages can help mitigate any issues between parties should they arise.

If I file for divorce first, do I get custody?

 The answer to this question is complicated and depends on many situational factors. Generally, custody and visitation rights come under the jurisdiction of family court proceedings rather than dissolution proceedings, so filing for divorce first does not guarantee a custodial parent status. However, it may be essential in determining who will receive primary physical custody of any minor children involved.

In essence, filing for divorce can be the start of important steps to obtaining custody of any minor children. The court considers many factors when determining primary physical possession, including financial resources available to each party, emotional stability and capability for providing proper care, and willingness to facilitate a good relationship with the other parent. 


Filing for divorce first can give one party an advantage over their former partner both legally and financially. While filing for divorce first has its advantages, consider all your options before deciding. Also, consult an experienced attorney and gather all the necessary documents before initiating legal proceedings.

About Shakir Ahmed

Head of the editorial team. I hold a Bachelor of Laws (LL.B) from UoL. Written hundreds of articles on divorce, child custody, employment and other human rights law topics for blogs and websites worldwide. Worked 6 years as a relationship development trainer. For any communication regarding any legal matter, please feel free to email me at shakir@lawyersnlaws.com

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