Regardless of where a divorce occurs, both parties are treated equally by the legal system throughout the process. However, that doesn’t mean that there aren’t advantages to filing first. To initiate the divorce process, one spouse must file a divorce petition with the local court. Being the first to file doesn’t result in preferential treatment, but there are often financial and legal advantages to doing so.
As with any court proceeding, a divorce case involves a plaintiff and a defendant. The first person to file automatically becomes the plaintiff, or petitioner. The other spouse automatically becomes the defendant, or respondent. Neither role has any major advantages over the other, but each has specific tasks to complete. The plaintiff draws up the initial petition and settlement agreement, which includes how he or she wants things like child support, child custody, spousal support and property distribution to be handled. The plaintiff must also make sure the defendant receives a copy of the petition.
Meanwhile, the defendant must sign the petition to confirm receipt. He or she must also file a formal response and can either agree or disagree with all or part of the petition.
The biggest legal advantage of being the first to file for divorce is that doing so defines where the case will be handled. The filing jurisdiction can have a major impact on the outcome of a divorce, so there may be distinct advantages to doing so. The first person to file also usually presents his or her case first, but that’s not always an advantage.
When one spouse suspects the other will file for divorce, he or she may hide assets or take other steps to undermine the process. By filing first, a spouse can take his or her time lining up legal representation. The first person to file can also gather the necessary documents ahead of time and ensure access to money and credit as needed.
At the end of the day, the plaintiff and defendant in a divorce proceeding enjoy the same rights under law. Being the first to file, however, may give a spouse a few small but important advantages over the other.