In Texas, Does It Really Matter Who Files for Divorce First?


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Brett Pritchard Law

Updated on March 22. 2024

If you are sure that your marriage is coming to an end, you are going through a difficult time, and you may be tempted to ignore the issue for as long as possible. This stance, however, is unlikely to be in your best interests. It is best to file for divorce as soon as you are sure that it is the best path forward for you.

Many people wonder if there are benefits to being the first to file for divorce. The truth of the matter is that it does not matter who files first when all is said and done. You and your spouse both have the same legal rights and responsibilities regardless of who files first.

However, while being the spouse who is first to file for divorce is unlikely to make a significant difference in the process, there are some procedural considerations that are worth examining more closely.

If you are hoping to keep the proceedings close to home, if you are motivated to keep the divorce moving forward at a swift pace, or if you have concerns about whether or not your soon-to-be ex will attempt to upend your finances before the divorce is final, being the first to file can help. Contact a Killeen divorce lawyer to see if filing first will benefit you.

The Psychological Advantage

Filing for divorce tends to be emotionally charged, and whether you or your spouse files for divorce will not alter this fact. There can, however, be a psychological advantage to filing first, which is based on the fact that you have taken a decisive step that reflects your careful decision to seek a divorce.

Being in the position of taking action rather than having action taken upon you can effect a psychological advantage. Additionally, by filing first, you are not left scrambling to respond. At this point, you have done your preliminary work, and the ball is now in your spouse’s court.

The Practical Advantages

Although the initial filer experiences a heftier filing fee, there can be practical advantages to filing first that are important to consider.

Acting as the Petitioner

The spouse who files the Petition for Divorce is the petitioner in the case, and in certain circumstances, he or she can have a slight procedural advantage.

For example, if your case ultimately goes to court, as the original filer, you will present your case first, which means you have the opportunity to strike a tone and make a first impression on the presiding judge. Doing this can be an advantage, but not always.

Choosing the County

If you and your spouse are living in different counties that both have jurisdiction in the case, the petitioner can choose the county in which to file. This choice can make the mechanics of your divorce, including any court dates, more convenient for you. Time is often an important consideration in divorce, and minimizing your driving distance can make things easier for you.

Setting the First Hearing Date

The petitioner generally is in control of setting the first hearing date for temporary orders (when temporary orders are needed). If you are going to need financial help from your spouse as your divorce proceeds, filing first can help lock it in sooner rather than later, helping you avoid financial disadvantages.

Temporary orders allow you to request interim provisions related to child custody arrangements, child support, spousal support, attorney fees, and other temporary financial matters, including the temporary use of personal property like your marital home and vehicles.

By setting the hearing date, your Central Texas divorce attorney will have the maximum amount of time to prepare your case, and the divorce proceedings will move forward as swiftly as reasonably possible.

Implementing Standard Orders

As soon as you file, certain standard orders are implemented that can help preclude problems regarding marital assets and custody issues from arising. Getting these in position at an earlier date can be beneficial.

Getting Temporary Restraining Orders

If you are concerned that your spouse may be squandering community resources—or hiding marital assets—in the buildup to divorce, filing first is in your best interest. Once you file, your attorney can get a Temporary Restraining Order (TRO) in place that can help maintain your financial status quo in the interim.

A TRO, for example, can stop your spouse from spending lavishly, transferring or selling marital assets, or otherwise hiding assets. Additionally, a TRO can prevent your spouse from engaging in underhanded moves such as canceling insurance policies or destroying evidence that could be critical to your case.

Divorce is fraught with painful emotions, and it can push otherwise reasonable people to do unreasonable things; a TRO can help.

Do Not File First Just to File First

The decision to file for divorce is never an easy one, and it should not be made in haste. If you have done the necessary soul-searching and have come to the difficult decision that you need a divorce, there is no time like the present to address the matter with a trusted divorce attorney.

Consult with an experienced Killeen divorce attorney and consider all of the following information before filing for divorce:

  • Filing for divorce first solely to file first is not likely to do you any favors.

  • Your decision to file for divorce should be based on your decision that it is the right thing to do for you, and this decision should be based on your careful attention to the matter (not on an imaginary timeline).

  • The benefits that you may enjoy from filing first will not outweigh the negative consequences of rushing your decision to file.

Your seasoned divorce attorney will help you examine your impending divorce from every angle prior to filing. All things being equal, being the first to file can provide you with a slight procedural advantage, but it is not worth unraveling a divorce strategy over.

When It’s Better to Wait to File

There are some situations in which holding off on filing can be beneficial.

Avoiding Hidden Assets

If your divorce involves high assets and you are not convinced that your spouse won’t stoop to underhanded practices to keep a larger cut, holding off on filing may be advised. It takes time to gather documentation supporting a fair division of marital property. The more time you have to find and copy this documentation, the better prepared you’ll be to protect your financial rights.

By waiting to file, you do not give your spouse the heads-up to begin hiding assets in earnest, which can benefit you in the long run. While forensic accounting can generally get to the bottom of hidden assets, it's costly and time-consuming. If putting off filing provides you with the time you need to perform the necessary investigations, it’s very likely worth it.

Remembering Tax Returns

If the current year’s tax filing will demonstrate higher earnings than prior years, waiting to file until the end of the year may support favorable child support or alimony orders if you are the recipient.

If you have any reason for not tipping your spouse off about your intent to divorce, allow it to guide you. Your dedicated Killeen divorce attorney is there to help you make the right decisions for you every step of the way, including when to file.

If Your Spouse Has Already Filed

If your goal was filing first, but your spouse beat you to the punch, don’t let it get you down. While there may be procedural advantages and making the first impression can be helpful, the most important concern is bringing your strongest case in support of your financial and parental rights, and your practiced divorce attorney will help to ensure that happens.

Turn to an Experienced Killeen Divorce Attorney for the Help You Need

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a seasoned divorce attorney who can help you explore your best options and proceed according to a divorce schedule that works for you and that supports your best interests. For more information, please do not hesitate to contact us online or call us at (254) 781-4222 today.

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