- June 16
- Evans & Herlihy
- Family Law
Getting divorced is one of the most stressful things you will ever do, even if you are still friends with your ex. The process can be expensive and go on for several months, during which time you have to expose your most personal secrets to strangers. You may be wondering if you have a legal or strategic advantage if you are the one who files first. In Texas, it generally does not matter which party files first. However, it may still be beneficial to be the filing party. This depends on your circumstances, and every case is different. If you have any questions, you should speak with your divorce attorney about what is best for you.
Advantages to Filing First
There are several potential advantages to filing first.
The Person Who Files Gets to Speak First
You can set the original terms and tone with your initial filings. Do you need a restraining order? Will you need a temporary support order? Let the Court know from the beginning what you think is important for your case, whether it be domestic violence, child custody and support, or other issues. When asking “Is it better to file for divorce first?” remember that the first speaker will make the biggest impression.
You Can Speed up the Proceedings
If you are the one who files first, you can speed up the case by bringing up the issues you plan to address during the dissolution proceedings. Although you can still ask for a hearing on all these issues even if you do not file first, it may be faster to bring up your requests in your initial filings. The discovery process can take a very long time, especially if there are new issues brought up after the initial filing. You can bring them out into the open right away.
Get the Help You Need
The sooner you ask for what you want, the sooner you can get the assistance you need. Especially if you are worried about domestic violence or paying for bills, you can get the ball rolling to get what you need right away.
You Can File a Protective Order Right Away
Without a protective order, your spouse is free to move away with the children or clean out the bank account. Filing a protective order will preserve the situation as it is while you await a final judgment in the divorce proceedings. If your spouse is dragging his or her feet, you definitely need to answer the question “Should I file for divorce first?” with a resounding “yes.”
Disadvantages to Filing First
If you are the one who initiates the divorce, you are the one who will pay the initial filing fee. In Texas, it may cost over $300 to file for divorce if there are children involved. By contrast, the party filing a countersuit may only be charged $40. While you may be able to ask for reimbursement, you will be the one who has to come up with the money for filing.
Does it make a difference who files for divorce first? While the judge may say that it does not, you may be able to create advantages for yourself by initiating the filing yourself.
The Divorce Process in Texas
Filing may seem like the first step in the divorce process. However, as can easily be seen, you should be well-prepared before you submit that first filing. Here are the steps you should take:
1. Find an experienced family law attorney Find someone you can trust and feel comfortable with, because you need to share some uncomfortable information with this person. Find someone who has experience navigating the local system, who understands the complexities of Texas family law. Feel free to interview your potential attorney, instead of simply choosing the first person you find. Your relationship with your divorce attorney may last for several years, and your lawyer can assist you with other matters that may arise later.
2. Spend some time familiarizing your attorney with your case. A good divorce lawyer understands that every marriage and every divorce is unique. By spending the time learning about your case, your attorney can best understand how to help you resolve your issues. You may even find that your attorney can help you with other issues related to your circumstances.
3. Make the final decision about whether you are going to divorce your spouse. You may also choose a trial separation instead of a divorce. If you do decide to separate instead of divorcing right away, your attorney can help you make arrangements for issues like support and custody.
4. Only after you have gone through these steps will you file for divorce. Depending on your relationship with your spouse, you may be able to enter agreed orders for some issues. If there are pressing issues you expect to be contested, your family law attorney can ask for a hearing as soon as possible. It may take a while to get into court for a regular hearing, as family courts are always busy. If you expect all issues to be resolved without argument, you may ask for a hearing date 60 days from filing; 60 days is the minimum time for a Texas divorce.
5. Send a legal notice to your spouse. You will need to provide information about the case so that your spouse knows about the case and how to respond. In some rare situations, you may need assistance having legal service made, but it is a vital part of your case. Without proper service, anything you do later can be undone if your spouse claims ignorance of the divorce.
6. If there are children or assets involved, you will probably have to go through the discovery process. Not only will the Court require you to provide basic documents, but you will also need to answer questions filed through the Court. You can speed up the process by getting all your documents together before you even file. These include items like tax returns, pay stubs, childcare receipts, retirement fund statements, etc. The discovery process can be very uncomfortable if you are a private person; and while you can object to some intrusions into your privacy, you may be asked to share personal details you wish could remain private.
7. If you and your spouse can agree, your divorce lawyers may file a signed agreement through the Court. If you cannot agree, you may want to try mediation so that a neutral third party can help you reach an agreement. If you cannot agree, your final hearing will be contested. When the parties agree on all issues, the non-filing party may be excused from the final hearing.
8. Once the Court has made a final judgment, it will issue a final decree. The final decree is a legal document that lays out all the divorce issues, including asset division, child support, child visitation, and whether the wife is taking back her maiden name.
Should You File First for Divorce?
Every marriage has multiple complicated issues that need to be resolved before the final decree. When parties can agree, that resolution may seem simple. However, there is no guarantee that even a compliant spouse will remain that way. Some couples start the divorce on a positive note and try to work out their issues amicably, only to find areas where they have strong feelings. You should consider what is best for you and your family’s needs.
Your divorce lawyer can assist you in assessing your situation and understanding your choices. Even though it may seem like it is going on forever, you can put your divorce behind you emotionally if you truly resolve your issues. Circumstances may change, and your attorney may need to help you make modifications at a later date, such as for child support. It will be important if you have someone you already trust to help you with your modification. Call (512) 732-2727 to speak with an experienced family law attorney today.