California Divorce: Does it Matter Who Files for Divorce First?

Filing for divorce is never easy, and one of the most difficult considerations spouses must face is whether to file first. Filing first can have significant legal and emotional implications. And while California is a “no-fault” divorce state, meaning that neither spouse has to place blame on the other, there are advantages and disadvantages to filing first.

Many spouses are hesitant to file for divorce first. Some may hesitate because they aren’t sure that divorce is the right answer, others may think they would be jumping into things too quickly, and others may be unsure how to proceed. If you’re trying to decide whether to file for divorce first in California, we hope to shed some light on this topic. This article will explore the advantages and disadvantages you should consider.

Advantages and Disadvantages of Filing for Divorce First in California

Since California is a no-fault divorce state, legally, it doesn’t matter who files for divorce first because the divorce will not be impacted. And while this is true, there can be some advantages and disadvantages to being the first to file for divorce.

Advantages

Here are some possible advantages of filing for divorce first in California.

  • Choosing Jurisdiction—The Petitioner (the person who files first) chooses the location of the divorce. So, if you and your spouse live in different places, filing first could help you avoid traveling to another location for divorce-related matters. It’s also important to note that jurisdictions can sometimes have different rules regarding issues such as child support, child custody, and the division of marital property.
  • Control Over Timing — The Petitioner typically controls how quickly the divorce proceedings move. This is especially true when the responding spouse fails to file a response within 30 days of being served with the Petition of Divorce. If that happens, the court can enter a default against the Respondent and allow the case to continue without them.
  • Additional Time to Plan—While the Respondent only has 30 days to find an attorney and prepare documentation, filing first gives you more time to meet with divorce attorneys, prepare the documentation needed for the divorce proceedings, and prepare your legal strategy. It also allows you to set aside funds to pay for legal fees and any other support you need.
  • Maintaining the Status Quo — If you live with your spouse, filing first can allow you to keep your children’s schedule and where they reside until the case goes to court. The court determines the status quo when the motion is filed. By doing this, your spouse can’t make unwanted changes to the children’s lives until the divorce is finalized. 
  • Presenting Your Case First—If your case has to go to trial, the Petitioner presents their case first. This can be beneficial because it allows you to present evidence and share your story without having to respond immediately to your spouse. Typically, you will have a chance to rebut what your spouse says after they present their case.
  • Potential Financial Benefits — Sometimes, filing first can have financial benefits. For example, you may be able to secure a temporary order for spousal support or use financial restraining orders to protect marital assets.

There are additional advantages to filing for divorce first in California if you are a victim of domestic violence.

  • Restraining Orders — You can initiate legal proceedings and request restraining orders against your abusive spouse. 
  • Visitation and Custody — You can present your concerns about your partner’s behavior and request protective measures such as supervised visitation to ensure your children’s safety.

Disadvantages

There can also be disadvantages to filing for divorce first. Here are some of the disadvantages of filing first in California.

  • No Hope of Reconciliation—If you had any doubt about whether your marriage was salvageable, filing first will likely eliminate any hope of reconciling with your spouse.
  • Financial Costs—The court charges an initial fee when the Petitioner files the Divorce Petition. By filing first, you are responsible for paying that fee unless you qualify for a fee waiver. On the other hand, the Respondent can possibly avoid their filing fee if the couple can come to a full Marital Settlement Agreement.
  • Showing Your Hand—In the Divorce Petition, the Petitioner will often include a proposed division of community assets and debts. This will clue the Respondent in on the petitioner’s demands.
  • Pressure to Justify Your Actions — You may feel more pressure from family and friends to justify your decision to file for divorce. This can take its toll emotionally and can lead to feelings of guilt or doubt.
  • Negative Social Impact—Filing for divorce first can strain your relationship with mutual friends and family members. Some may feel like they need to choose sides or distance themselves from both parties to avoid being involved in the situation.
  • Impact on Children — Divorce can have a significant effect on the children involved, especially if the divorce comes as a shock to your spouse. Children may struggle to understand the sudden changes in the family dynamic, leading to potential long-term consequences.

If you feel like your marriage is ending, speaking to an experienced divorce attorney to discuss their specific circumstances is essential. Your divorce attorney can help you decide the best way to move forward with the divorce and will be at your side to help you navigate the divorce process in California.

At The Gorski Firm, we provide tailored solutions to our clients when handling their family law matters. Our team of expert divorce attorneys is dedicated to exceeding your expectations. Our “Client Service Principles” reinforce our commitment to providing exceptional service to each client.

Let’s work together. Contact us today for a consultation.

Written by Vincent A. Gorski

Vincent Gorski is a Bakersfield California Family Law and Bankruptcy lawyer. He is certified by the California Board of Legal Specialization in both Family Law and Bankruptcy. He is the founder of The Gorski Firm and assists clients in complex and routine family law and bankruptcy issues. He was licensed to practice in Indiana in 2007 and California in 2009. He regularly writes on topics related to Bankruptcy and Family Law issues (divorce, custody, visitation, support, property division, etc.)

March 27, 2024

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