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Divorces are certainly stressful – and, in some cases, strategic. The first step towards an intelligent divorce is determining whether you should file before or after your soon-to-be-ex.

Filing first for divorce may help you feel like you’re in control, but when does it help your case?

Read on to find out:

  • Who is considered the “plaintiff” in a divorce case – and whether that makes any difference in the outcome.
  • Possible benefits of filing first, specifically for this type of divorce.
  • What to do if your partner files first.

Who is the Plaintiff in a Divorce?

Every divorce case will have one plaintiff and one defendant.

The plaintiff in a divorce is the person who files first. By default, the other party in the case becomes its defendant.

It might sound scary for those unfamiliar with the court system to be the “defendant” since TV shows typically reserve the title for accused people. Don’t worry: The term means that your spouse is the one who filed.

While it may seem like the plaintiff has a serious advantage, whether that’s true depends on your situation.

If you and your former partner still get along, then the plaintiff is just a title. It makes no difference who the plaintiff or defendant is since you’re both working toward the same goal: An absolute, uncontested divorce.

Provided that you and your partner are on the same page, it shouldn’t give either one of you too much of an advantage. Once one person files, the other has a chance to respond to their claims.

In the end, the claims you both make on your divorce forms will decide your case – not whoever turned in their paperwork first.

… That is unless you’re filing an at-fault or a contested divorce.

The Possible Advantage of Filing First During Contested or Fault-Based Divorces

If you file first for divorce on contested grounds or claim that the other party is to blame for the divorce, there may be an advantage to filing for divorce first.

First and foremost, by filing first, you establish the timeline.

Your spouse – the default defendant – must respond to any claims you, as the plaintiff, have made in your initial filing within 30 days of service. If they don’t respond to your divorce petition, the defendant loses their right to argue about property and support.

You may have spent months gathering documents and sorting through possible evidence to make your initial claims.

In contrast, the defendant will get about 4 weeks to get their ducks in a row.

Other advantages for filling first during a contested or at-fault divorce may include:

  • You are telling your side of the story first. Any defendants will be working uphill to counter any first impressions created by the initial filing.
  • You are controlling the narrative. As the plaintiff, your first statements establish what you want, where the marriage went south, etc. Much of the defendant’s filings will respond to you instead of you responding to them.

If nothing else, then filing first often helps clients feel relieved. There’s no more waffling or wondering what might happen – the process has officially started.

While filing first allows you to prepare more, you’re not guaranteed to win any of your requested concessions, such as custody or alimony.

What if My Partner Filed for Divorce First?

If you didn’t get the benefit of filing first, then take a deep breath. You’ll have ample time to tell your story. Perhaps you’ll even tell the story better than your ex since they had to “show their hand” and all evidence when they filed.

And, once proceedings start, the judge looks at both sets’ of information equally.

However, your defense to the claims made in the plaintiff’s filing must be completed quickly. Remember: You have 30 days from the date of service to file any responses to the first filing.

If you’re struggling to respond to a divorce filing, then hire a good lawyer. They will know how you should react, what evidence to gather for your side of the story, and what you have to do to secure your best chances of winning.

We firmly believe that a good lawyer will make or break your final divorce decree more than who files first. If your ex has already filed – or if you want help beating them to the punch – contact us to see how we might position your case.

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