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.