The Dilemma of Filing for Divorce – First or Second?

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation attorneys; California Divorce MediatorsIs it better if I am able to file for divorce before my spouse?

What is the benefit or drawback of filing for divorce first before the other spouse is able to?

These are common questions that people going through a divorce tend to ask their lawyers. Before the answer to that question is given, let’s be clear on something. Divorce is a serious and life changing decision and no one should be rushed into making such a decision. When you come to the conclusion that your best interests lie outside the marriage, only then after careful deliberations can you attempt at getting a divorce.

Now let’s come to the answer of the question, should you file for divorce first?

In our society, filing for divorce is seen in the same sense as trying to pick a fight. The typical thinking for a long time has been that if you are the one who is filing for the divorce first, then you are likely to be the one who wants out i.e. you are the bad spouse. This kind of thinking is what makes most spouses reluctant to file for divorce. Yet, there is another side to the coin too.

If you file first, it is believed that the process is in your hands since you are then going to be the petitioner. Yet, will the judge care about who filed first or second? Can the spouse who files first claim a sort of advantage in the case? The answer to that question is no. However, there are a few exceptions.

The Advantage On Venue Or Jurisdiction Of Filing First

What is the importance of words like venue and jurisdiction? Simply put, they show the power that the judiciary is able to exercise in the case. More often than not, there can be case where both the spouses live in different counties and therefore fall under the jurisdiction of different courts. This is where filing first can be to your advantage. If you are able to file first, your divorce case will be dealt with in your locality i.e. the Orange County and not the other county that your spouse resides in.

The Danger To The Child And Filing First

If you have reasons to believe or it is clear that your children are in danger because of your spouse, the wisest thing to do is to be able to file immediately. In cases where the spouse files first against the spouses who is threatening the children, the courts have discretionary powers to give an immediate sentence for the protection of the children. If you delay the case filing and then claim the danger to your children, the first question you’ll face will be about the delay in filing for divorce.

Filing for divorce first or second is an important decision, but it poses a question that has no clear cut answer. If you are clear on your decision, it is best that you file for divorce as soon as possible to keep the marriage from going on unnaturally.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”