Family law attorneys are constantly asked what, if any, advantage there is to filing first. Whether it is for divorce, custody or support, the answer is both “yes, there is an advantage” and “no, there is not an advantage.”
The answer is “no,” because your allegations, evidence, and prayers for relief will be reviewed impartially by the court—whether you filed first or not. The judge will not favor either party because of the order of filing.
The answer is “yes” for two main reasons: (1) you get to set the pace for litigation and/or settlement, and (2) you get to speak first and last in the event your case goes to trial.
Setting the Pace
Filing first means having some degree of control over the pace and nature of litigation and/or settlement. Are you hopeful for a settlement, and do you want to demonstrate that to the opposing party? Are you eager to go to trial and uninterested in exhibiting any level of compromise? Do you simply wish to express to the other side that you are serious, but also that you are willing to negotiate? Being the first to file, and being the first to put the mechanisms of the court (e.g. the ability to file motions and propound discovery) at your disposal allows you to set the initial pace. However, this does not mean that the opposing party cannot later influence the tempo.
Presentation of Your Case
The more significant and apparent advantage to filing first is that, in the event of trial, you will get to present your case first and last. The Plaintiff/Petitioner (the person who filed first) will present their case, then the Defendant/Respondent will present their case, then finally the Plaintiff/Petitioner will present rebuttal evidence and witnesses. So, as the Plaintiff/Petitioner you will get to speak twice! This also means that you will have the advantage of being on the offensive during the trial, rather than the defensive.
Whether or not you file first, the best thing you can do for yourself is to speak with an experienced family law attorney early. Make sure you know your rights, your options, your remedies, and the best courses of action going forward. You will then be able to take proactive steps in your divorce, custody or support case, such as:
- Information-Gathering. Collecting the right information and documentation for both you and your spouse, including but not limited to bank accounts, debts, properties, past and present household income, income received from outside sources, etc.
- Prevention of Marital Waste. In the event you are married to someone who has the capacity or propensity to drain, hide or otherwise make unilateral decisions about your joint finances, an experienced attorney can help you prevent your spouse from engaging in such acts and/or protect what you have left.
- Preserving Your Fault-Based Ground. If you are contemplating filing for divorce on a fault-based ground (adultery, cruelty, etc.), an experienced attorney can help you preserve your fault ground and understand the defenses your spouse might invoke.
- Building Good Facts for Your Case. In the event your divorce, custody or support case will be contested, an experienced family lawyer can help you understand what factors the court will consider in its determination, and what actions you should take now to make your best case later.