Advantages of Filing First
The party who files first sets the agenda in the case. As attorneys, the one who files first gets to present their evidence first. As a result, they control the order the court considers the issues and they get the first opportunity to convince the court how to rule.
However, if you can’t file first because you’ve already been served, don’t fret. The Respondent gets to present their evidence second and often gets the last word (however beware of some judges who will allow the Petitioner the opportunity to rebut).
The party who files the Complaint has the opportunity to ask the Court to grant temporary orders at the start of the case. These orders can be amended or vacated by the Court while the case is still pending. But, the Petitioner can get the orders they want at the start. For example, the Petitioner can, and often does, ask for exclusive possession of the home and custody of the children. The Respondent may be served with the Complaint and an order to immediately move out of the house at the same time. The Respondent can ask the court to amend the orders, and the court will usually hold a hearing within a short period of time, but until the hearing the orders remain in place.
The party who files the Complaint sends a clear message to the other side that they’re serious about the Complaint. Moreover, if the Complaint and summons are accompanied with a mound of our favorite motions, it puts your attorney in the driver’s seat.
The party who files first gets the element of surprise and intimidation – but be sure this is what you want and what is really appropriate for the circumstances. Don’t forget that your goal should be to give your spouse an equitable distribution of your marital estate unless there has been some behavior or conduct which would lead the judge to award a different portion of the estate.
The element of surprise and intimidation may be appropriate to offset similar tactics by your spouse or their lawyer because you are gaining leverage so that when all is said and done, the split is 50/50 rather than 30/70 or more in your spouse’s favor. Again, be sure that you and your lawyer thoroughly reviewed all of the pros and cons of this type of action before committing to it.
Another advantage to filing first and controlling the case is that the opposition often feels like they are always on defense, responding to moves made by you. Even though the outcome may not change if you file first, the perception of the process can be very different depending on whether you filed first or if you’re the Respondent.
If done properly, filing first will allow you and your attorney to create significant advantages for yourself, avoid some common pitfalls, and create a climate for settlement in which you have clear authority in, and control of, the situation.
There are quite often times when one spouse cannot, or chooses not, to file first. Many times it is because they don’t want it to look like they are giving up on their marriage or family. Some litigants are concerned that the children will think that it is their fault if they file first. Our attorneys tell clients how it is just as easy to tell people that you caused the divorce because you never listened or caused arguments as it is to say you filed first. As for your children: they’ll remember how you handle the process, not who initiated the process!