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Does it Matter Who Files for Divorce First?


A question, which is often asked by clients, is does it matter who files for divorce first? The answer, like most in the law, is it depends. The significance of filing first is dependent on the facts of each case. In some circumstances, it may be beneficial to file first while in others, waiting may be the better option. It is important to discuss your options with an attorney to ensure you fully understand the advantages and disadvantages of filing first in your case.

Although the order in which you file will not determine the outcome of your case, filing first can present certain advantages. The plaintiff/petitioner is the party who filed for divorce while the defendant/respondent is the party who must respond to plaintiff’s claims for divorce. One advantage of being the plaintiff is the plaintiff has the choice of when to file.  This provides the ability of choosing when the proceedings will begin and allows the plaintiff more time in preparing for the suit.  The plaintiff will also have the first choice in hiring any legal professionals, which in complex financial situations may include a forensic CPA in addition to your attorney.  Filing for divorce can also prevent your spouse from trying to hide or dissipate marital assets because of the Automatic Domestic Relations Standing Order that goes into place when one party files and is designed to help guard against any underhanded tactics.

Additionally, although Georgia law controls on where petitions are to be filed, in the event there are multiple venues to choose from, the plaintiff has the power to choose the forum. Lastly, the plaintiff has more control over the trial, should that become necessary The plaintiff has the choice of presenting their case first and being the last to give a closing argument.  In any case, the first and last word can be very impactful.

Depending on the circumstances of your case, it may be more beneficial not to file first. This is largely dependent on the facts of your case. Filing first presents the need to pay potentially expensive filing fees. Furthermore, you may be blindsided by your spouse’s arguments and counterclaims in their answer, which can lead to the need of amending your complaint for divorce.

The decision on whether to file for divorce is extremely stressful. It is important to ensure you understand all legal advantages and disadvantages of filing first or waiting to file. Discussing these options with an attorney is crucial and may set the tone for the entire litigation.

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