Should I File First?

“The present time has one advantage over every other – it is our own.” – Charles Caleb Colton

When divorce is imminent, is there any advantage to being the first to file? The short answer is yes.

From a legal standpoint, there really should be no advantage as both the parties stand on the same legal footing.  But as a practical matter, the Petitioner (the filing party) will generally present his or her case first, thereby getting the opportunity to make the first impression on the court.  Additionally, once the Respondent has presented his or her case, the Petitioner will once again have the opportunity to present rebuttal testimony, thereby also gaining the advantage of having the last impression with the court.  We all inherently know the importance of first and last impressions; social scientists call these the primacy and recency effects.

But there are more significant advantages to being the filing party.  The party that files has the ability to select the timing of filing, giving them the ability to prepare both emotionally and financially.  The filing party may have more time to investigate and select a lawyer or to protect marital assets from dissipation. By filing, there is control over the possibility of foot-dragging and delay.

It is my firm belief, however, that the biggest advantage of filing first is the impact that being proactive has on the Petitioner’s mindset and attitude towards the divorce process.  By filing, you are taking action; by taking action, you are taking control. There is nothing worse than waiting for something awful to happen to you and no better cure for that “Sword of Damocles” feeling than to be the one to rip off the bandaid.

The sense that you are in control of your own destiny – rather than at the mercy of your now-adverse spouse – can be an enormous relief and advantage throughout the divorce process.

Should I File First?

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