Once you have made up your mind about divorcing, the question of who should file first is bound to come up. What many people fail to realize is that this one strategic move may have lasting implications. Filing first can give you the upper hand in choosing the jurisdiction, especially if you and your spouse live in different areas. It also allows you to set the initial terms, which might include requests for temporary child custody or spousal support.
In this post, we will discuss the pros and cons of being the first to submit divorce papers and how it sets the tone for the whole legal process.
Potential psychological advantage
When you are the one to start proceedings, it may allow you to feel empowered and less anxious about what comes next. You are not waiting for your spouse to make the first move; you are taking control of the situation.
Being the first to file also means you have time to prepare. You have probably talked to a lawyer, gathered important documents, and thought about what you want out of the divorce. So, you are not caught off guard.
Choosing the right timing
Courts can get busy, and if you file at a less crowded time, your case might move faster. But the time you choose to file does not necessarily affect how your money and property get split. Maybe you are expecting a bonus at work soon; depending on when you file, that bonus might be considered joint property or your own money.
Filing first will not give you a “better deal” in court. That said, if you and your spouse live in different cities or states, being the first lets you pick where the divorce case will happen. This could be a good thing for you. If you live someplace where the laws are better for parents or dividing property, filing first means the divorce will happen under those laws.
Setting the tone
The person who files for divorce first can guide how things will go. For example, if you file first and you are cooperative, your spouse might act the same way. But if you are hostile or aggressive, the process might become contentious.
The first filer also gets the opportunity to request temporary orders for things like who gets to stay in the house, who takes care of the kids, or who pays certain bills while the divorce is still going on. These orders can sometimes dictate what might happen in the final settlement.
Responding to the filing
The spouse who didn’t file first must respond to the divorce papers within a set timeframe. In Phoenix, AZ, the spouse has 20 days to respond if they are served the divorce papers within the state. If they are served outside of Arizona, the time frame extends to 30 days. Failing to respond within this period could result in a default judgment.
Effect on mediation and negotiation
Another benefit of filing first is that it can sometimes give you a psychological edge in negotiations or mediation, if the other spouse is caught off guard or surprised by the filing. This initial shock can make them more open to compromise because they are still processing the reality of the divorce.
You may also get a chance to freeze your joint accounts or set a date for the valuation of marital assets. This can protect your financial interests, especially if you are expecting a contentious divorce.
Children and custody
If you file first and request a temporary custody order, a judge might be more inclined to continue that arrangement in the final divorce decree, unless there are compelling reasons to change it. But do note that the court will consider the best interests of the child above all else when determining custody, no matter who files first.
Avoiding race-to-the-courthouse mentality
Initiating the divorce offers a few advantages, but keep in mind that a rushed decision could result in mistakes you regret later. In the haste to file, you might not collect all the necessary financial documents or forget to list certain assets, which could affect your property division, alimony and child support calculations.
Get an Experienced Arizona Divorce Lawyer on Your Side
Taking the first formal step in ending the marriage requires you to be aware of your legal rights, including how to file the paperwork correctly so you don’t make any mistakes that could put you at a disadvantage. If you need legal guidance in filing a divorce in Phoenix, don’t hesitate to reach out to us at 602-265-5200 or fill out this form.