Does It Help To Be The First To File In A Divorce?

Many people seem to think that being the first to file a court case for divorce will automatically give them somewhat of an advantage over the other party. They hope doing so will make them look like the aggrieved spouse in the judge’s eyes. This, in and of itself, is really is not true. The judge was a lawyer at one time, and is not going to be taken in by this strategy.

However, there are certain advantages to being the first spouse to file. They are mostly procedural, and are not what the public imagines.

One advantage is that if, at any time during the case, you don’t like what’s happening (e.g. the judge recommends a settlement you don’t like, or rules against you on a temporary motion, or you get a sense that the judge favors your spouse, or you feel you need more time to prepare for trial, etc.), you can voluntarily dismiss the case, and the other side cannot prevent the dismissal from happening.

This works only if your spouse has not yet filed a counter-petition for dissolution, and if your trial has not yet begun.

If your case is dismissed, you will have to start over, but you will get short term relief from the doom you foresee happening if you were to proceed. Besides, doing this will frustrate your soon-to-be ex, and take the wind out of his/her sails.  This might very well enhance your settlement chances.

Another advantage will occur if you actually go to trial (the chance of this happening is about 10%). The party that files first gets to put on their case first, and this may be more persuasive to the judge than going second.