Does it matter who files first in a divorce?

Does it matter who files first in a divorce?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Many people are under the impression that filing first in a divorce will put you at an advantage over your spouse. This is generally not true but there are some reasons a person should consider when pushing to be the first to file in a divorce.

The first person to file a divorce in the state of Texas is known as the petitioner. The opposing party is known as the respondent. This petitioner’s name will be stated first in the case style on all pleadings that are filed in the case and will be the first party to present their arguments at any hearings or at trial.

Being the party to file the initial suit means the petitioner can have an option at deciding what county to file in. If both parties are residents of different counties, it may matter to a person that they file in the county where they currently reside. This can be for many reasons, a big one being convenience. Especially for parties that are domiciled out-of-state, it can be urgent that you file your suit first. This would ease you from having the inconvenience of having to travel, and instead require the other party travel to the county where you have filed the suit.

Of course, this does not give the petitioner any county as an option as they must meet the residency requirements to be able to file in any county. For example, in order to file within Harris County a person must be (1) domiciled in the State of Texas for at least six months, and more specifically, (2) have resided in Harris County for at least 90 days prior to filing a petition for divorce. Only one party needs to meet these requirements, meaning that even if you do not meet these requirements you can still file within that county if your spouse does.

However, a court would still need to be able to exercise personal jurisdiction over a respondent if the petitioner meets the residency requirements. This means they will need to have the authority to require the out-of-state party to subject themselves to the laws of the state and court. Simply stated, personal jurisdiction is the court’s power over the parties to a lawsuit. Personal jurisdiction is typically granted to a court over an out-of-state respondent through a long arm statute. The two main types of long arm statutes that pertain to a divorce would be divorce jurisdiction and parent-child jurisdiction if there are children involved in the marriage. All statutes in relation can be found within the Texas Family Code, Section 6.305.

Another thing to consider when filing first, is that the Petitioner is responsible for paying the initial filing fee. This fee can range anywhere from $300 to $400 depending on what county the lawsuit is filed, and if there are children involved. As a respondent, the only pleading required would be an answer which is mainly free, but at most can cost a few dollars. If you are wanting to countersue the petitioner for divorce, the respondent would need to file a counterpetition which can range from $50 to $100. In short, the initial filing will incur more costs. This as well does not include the fees a petitioner will have to bear by requesting a citation and hiring a process server to serve the respondent. This too can be costly, especially if the respondent’s whereabouts are unknown. These fees are something a person should keep in mind if they are insisting on filing first in a divorce.

A petitioner can have the upper hand in a divorce because they are able to set the tone of the divorce. This means they will have to decide whether they want to plead fault or no fault in the original petition. However, pleadings can be amended and changed by either party after the initial filing. Most people however will aim for an amicable divorce where no-fault has been plead, but they can always amend later if they want to include any at fault grounds for the divorce.

Along with the original petition for divorce, it is not uncommon for a petitioner to file a request for temporary orders along with the petition. They are often requested in the initial pleading, and their purpose is to put restrictions on how the parties should behave during the divorce proceeding. These can include visitation rights, conservatorship of the children, child support, who will have access to the marital home, bills, etc. A petitioner can have the advantage here because they will have more time to prepare for the hearing versus the respondent. A petitioner can also ask for a Temporary Restraining Order (TRO) which can help prevent the other party from hiding assets. A TRO is binding on your spouse and can help deter these behaviors. A petitioner has the advantage to prepare for both a temporary order hearing and a temporary restraining order.

Most family and divorce law cases will not make it to trial, this is because most cases will settle in mediation before the case goes to trial. While it is the most cost-efficient method to settle outside of court, there are a small percentage of cases that do end up in a trial. If you are a petitioner in a case this can have a significant impact on what trial strategy is used. A petitioner gets to present their case before the judge first, to which a respondent will have to counter-argue and put on their case second.

If you are unable to file first in a divorce proceeding, a person should not worry too much because you will still be able to fully present your case in the divorce process. You have the right to counterpetition and present your arguments before the court. However, if you are persistent in filing first you should keep in mind the advantages you will be entitled to in preparing your case against the respondent. Also, you should be aware of the cost you will incur with the initial process of filing and service of process.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.


Divorce Attorney Elise Mitchell's Private Files Document Blow Jobs to Judges

Divorce Attorney Elise Mitchell's Private Files Document Blow Jobs to Judges

James Towery sexually harassed the legal secretary in his own law firm. The problem for Towery was that the secretary kept notes, and his wife, Marilyn Morgan , a partner in the firm with her husband, James Towery, and father, found out. That landed James Towery in divorce court, which he and Marilyn quickly shifted out of the county with the help of Marilyn’s father, a well connected lawyer with the local Bar. 

Judge James L. Stoelker has been using his contacts from representing big banks in a money laundering scheme designed to kick back money from the sale of homes in local divorce cases.

Judge Manley has been rigging outcomes in drug court, while getting kickbacks from the pharmaceutical industry. 

Judge Roberta Hayashi has used non-profit cancer organizations to launder money to her campaigns  and has done so at some of the most elite fundraisers in the Los Gatos homes of Silicon Valley’s top CEOs and tech industry executives. 

For the past 20 years women lawyers, clerks and secretaries have been keeping records of lawyers gone wrong. Those records are now cropping up and being shared. Just as former President Bill Clinton had to deal with Monica’s Blue Dress problem, local lawyers and judges are no longer able to contain the secrets they hoped would remain buried in secret settlements and court files that the local  media never wanted to touch. 

Divorce Attorney Elise Mitchell’s high turnover in her office may come back to bite her as one former employee kept secret recordings that outline collusion with the local district attorney’s office and the courts. 

Papers recovered from Notre Dame High School  show Mitchell as holding the notes and secrets of some of Santa Clara  County’s most powerful judges and lawyers. 

Notes contained in the papers show  elaborate schemes that involve Santa Clara University, Stanford, Presentation , Norte Dame and St Mary’s in San Jose where divorce lawyers were using  local courts to assure a steady stream of young women and boys  to sex trafficking rings. Payments from local law firms were also linked to the court clerk of Judge Matthew Gary in Sacramento. The clerk was then running payments through court reporters to private supervision centers  and real estate businesses where spouses and relatives own interests. Lists explain the scheme launders money through the relatives of judges overseeing divorce and custody cases. 



Divorce Attorney Elise Mitchell's Private Files Show Payments for Sex Favors to Judges Arranged by BJ Fadem and Family Court Services Own Jason Magers


BJ Fadem is first openly Transgender lawyer regularly appointed to represent children in Silicon Valley courts. Papers reportedly left by Elise Mitchell at Norte Dame in San Jose show Fadem as part of a huge child and sex trafficking ring involving judges and custody experts.

Transgender: Abuses Mothers in Family Court 
For those who remember BJ Fadem as a woman, the notes and confidential papers left at Notre Dame high school in San Jose came as no surprise. Fadem,  who was never comfortable being a woman and reportedly hated his own mother  has unleashed years of torment on local children whose parents  are divorcing in Santa Clara family courts. Worse, confidential papers left at San Jose’s elite Catholic High School show Fadem was also involved in the criminal trafficking of children and laundering money through the local courts in the form of court orders and appointments. The notes show Fadem working to protect Stanford professors, and high tech executives who sexually molested children and arranged sex favors including blow jobs to some of Santa Clara County’s most prominent judges. Fadem is linked to Family Court Services MFT Jason Magers, also transgender, who is known for taking children from mothers as a form of grooming in the sex trafficking rings. 

Many believe the papers were left at the high school by controversial divorce attorney Elise Mitchell, who has recently experienced high staff turnover and is rumored to be frazzled purchasing a home with her husband using money laundered through the courts and payoffs from the 49ers. Payments reportedly arranged through attorney Eric Scott Geffon, now a Santa Clara County superior court judge. 

Selling the Homes of Families to Pay the Lawyers and Sex Traffickers

​James Towery, another lawyer turned bad judge, was known for  sexually harassing  the legal secretary in his own law firm. The problem for Towery was that the secretary kept notes, and his wife, Marilyn Morgan , a partner in the firm with her father, found the notes and took Towery to divorce court.

After he was appointed to the family court, Judge James Towery began using his elected office to sell the properties of families involved in local divorces in order to assure payments to court appointed lawyers, private judges and custody evaluators  who use rigged reports and junk science to separate children from their families and put them into the criminal justice or foster care systems where they are ripe for sex trafficking and abuse. 

Banks Funding Trafficking Through the Courts

 The papers show Judge James L. Stoelker has been using his contacts where he formerly represented big banks to assist the  money laundering scheme  using local real estate transactions and help from county assessor Larry Stone’s confidential secretary.  Stone’s office has coordinated the scheme through the district attorney’s office where prosecutors including Deborah Medved, Terry Harman and Allison Filo have helped the trafficking ring after  Medved became a family law attorney regularly appointed to represent children in cases with judges she knew from the DAs office, including Amber Rosen, the wife of District Attorney Jeff Rosen. Medved was known for protecting Stanford professors and Silicon Valley tech executives who were part of sex trafficking rings and where many abused their own children, with impunity. 

Notes show Medved,  was arranging cash payments with the help of DDA John Chase to DA Mark Peterson in Contra Costa County. Other judges involved in the scam include: 
Santa Clara County; Patricia Lucas, Mary Arand, Julie Emede, Vincent Chiarello, Mark Pierce, Joshua Weinstein and Roberta Hayashi, all  assisted by government lawyers Lisa Herrick and Los Gatos Councilwoman Barbara Spector, formerly of Hoge Fenton. Private lawyers known for watching porn and trying to trade representation for sex include Nat Hales, Neville Spadafore, and Catherine Gallagher who are regularly appointed as private judges to keep the scam out of the public eye. 

Judges have been repaid for their rulings with mysterious payoffs on their homes and rental properties using Los Gatos based Orange Title company and connections to Intero real estate agents to do so.  

Judges Putting Kids on Drugs for Profit

Judge Manley has been rigging outcomes in drug court, while “investing” in drug companies through relatives and friends.  Court ordered drug rehab and probation monitoring  programs listed in Mitchell’s notes show area lawyers and judges getting kickbacks from large drug companies and big players in local marijuana businesses. Mitchell was recently heard by a staffer bragging to clients she could get a former spouse criminally prosecuted due to her connections with John Chase and Michael Moreno in the DA’s office.

Unity Care, the corporation charged with caring for foster kids in the San Jose area, is highly linked to Judge James Towery,  Judge Amber Rosen, Kayrn Sininu Towery and  Supervisor Cindy Chavez, all who profited from the drugging and abusing of children caught in Santa Clara County’s juvenile system. 

Drugging of children based on recommendations and orders of court appointed lawyers appear to be key to the scam. Hundreds of CP cases and court files that are kept confidential by the courts, and state law, show the most egregious  offenses according to notes and records found at the high school. 

Judge Roberta Hayashi, one of the judges documented in Mitchell’s notes reportedly  used non-profit cancer organizations to launder money to her campaigns and kickback favors to Silicon Valley’s top tech industry executives whose divorces come before her in family court. Hayashi, a former judge in criminal court, has reportedly received unreported campaign contributions, and repayments on real estate owned in the upscale Los Gatos community. Hayashi’s connection to the Los Gatos Police indicate much of the sex trafficking has gone through law enforcement officers tied to the Los Gatos and San Jose police. 

Disappearing Families

Sex trafficking in Silicon Valley  has been  concealed by  local media that has secret deals to kill stories related to the local courts. Judges drag out divorces to isolate children in order to traffic them. Once a divorce drags out for five years, children become isolated from their extended families and neighbors, allowing them to disappear without raising eyebrows.  

Erasing children to traffic them begins with court orders that  appoint lawyers to make decisions for a judge. Decisions are rarely based on the BEST INTEREST OF THE CHILD  and more for the best interest of the pocketbooks of judges and lawyers. Soon after an appointment,  lawyers will claim  to need appointment of custody evaluators. Most nefarious include Phil Stahl, Leslie Packer, Michael Sullivan and Ken Perlmutter, whom BJ Fadem is known to coordinate with in order to rig report outcomes in favor of a parent in on the sex trafficking scam. 

Judge Steve Austin of Contra Costa, Judge Patricia Lucas of Santa Clara and Judge Mathew Gary of Sacramento  appeared to be ring leaders of the operation, where their positions in the state courts provided them assured immunity. 

Connection to Sacramento 
One diagram in the Mitchell notes indicate Sacramento judge Mathew Gary arranged  part of the  payment  scheme  through court clerks and court reporters who were able to launder money disguised as cash payments for transcripts that were   buried in fee awards made to lawyers throughout the state. The diagram additionally shows connections and protections through local governments including elected district attorney Mark Peterson, whose sex scandals and coverups are now being reported in the press following his indictment and disbarment. District Attorney Jeff Rosen is reportedly the target of the next indictment, and recall waive resulting in the failure of his office to prosecute the undocumented immigrant who killed Willow Glen mom Bambi Larson, and the homeless man who raped a San Martin woman early in 2019. 

Children Who Escape
Several children, now grown, have come forward to describe how they were groomed for sex trafficking. Therapists appointed by the court used gaslighting and torcher to get them to hate protective parents. Once the protective parent has been legally removed by the courts, the children report being offered drugs by their court appointed lawyers and abusive parents.  Therapists also recommend prescription drugs that are forcibly given to children by court order, over the objections of protective parents.  Kids describe losing friends who don’t understand the court process, slipping grades, and dropping out because they felt invisible and lost their family support system. Some become incarcerated only to find their family gone when they are released. Once the children have been isolated from their  family and community, they are ripe for the trafficking rings being operated by a core group of judges and lawyers in our family courts. 

In addition to family courts, Mitchell’s papers indicate area lawyers have been secretly settling sex abuse cases against judges, high profile prosecutors,  as well as teachers and administrators at Notre Dame, Presentation and Mitty high schools. Students from those schools were told to hire lawyers and then were gaged from talking about the abuse. Robert Allard, a close friend of the DA’s office,  appeared to be negotiating many of these settlements in a manner that would prevent the DA’s office from prosecuting the most heinous sex abuses of children that involved connections to local lawyers, judges and custody evaluators working in Silicon Valley’s criminal and family courts. 



Divorce Files Show Abusive Judges and Lawyers


Ken Perlmutter’s family alleges sex abuse of nefarious custody evaluator


Walter Hammon (far right) wife Maben and Santa Clara County Supervisor Susan Ellenberg investigated for corrupting family courts.

Investigated: Susan Ellenberg and Walter Hammon 

For decades parents and Whistleblowers have complained that Silicon Valley courts have ignored decades of corruption  that allowed pedophiles, abusers and thieves to rob and harm families for profit. 

A recent investigation links Santa Clara County’s newest woman Democrat to sex trafficking, and scandalous conduct imposed by the Hammon Legal Dynasty. 

Divorce files show Ken Perlmutter is renting a home for $6100 a month, where he is charged with money laundering to avoid obligations during a divorce. Secret recording devices planted near Perlmutter’s rental home have captured conversations with divorce attorneys Bradford Baugh, Walter Hammon and Donelle Morgan, showing how divorce lawyers, custody evaluators and CPAs are using Santa Clara County divorce cases to launder money and fleece families for