divorce file

Filing First: Is There Any Benefit to Filing for Divorce First?

By Michael DiFalco

A divorce is a legal proceeding that wraps up all outstanding issues in the marriage before dissolving it. In many cases, both parties understand that the marriage has ended and divorce is necessary for both parties to move on.

But in other cases, communication has broken down, and the spouses do not agree on when or how to file for divorce. In these situations, one spouse might consider filing before the other is ready. The question becomes whether a spouse can gain an advantage or benefit by being the first to file divorce papers.

Benefits of Filing Divorce First

A divorce case begins when one spouse files a divorce summons with the court clerk, which is now done electronically. The other spouse responds to the notice after they are served with the papers personally (or through their attorney). Once this happens, the parties are essentially on equal footing. Both spouses can request any necessary relief, whether that may include support or custody issues, as well as discovery documentation from the other side.

The spouse who filed first will present their evidence first at trial. However, since the spouses must exchange evidence during the discovery period, neither side can spring any surprises at trial.

Often, you will not gain any advantages by being the first to prepare a divorce filing but you will be able to tell your story first and to direct the course of the process with a bit more control than the defendant can. The legal system is designed to maintain fairness regardless of who files first. As a result, you will not gain any legal advantages by filing first.

But you can gain strategic advantages in some situations. Some strategic advantages you can gain by being the first to file divorce papers include the following:

Choice of Venue

Under New York law, you can file your divorce filing in the county where either you or your spouse lives. This might not provide any advantage if you live in the same county. But if you live in different counties, you can file in your county of residence which could avoid additional travel expenses or time for you and it may be a county where the judges are more favorable to your position.

You can gain an even greater advantage if your spouse lives in another state. You can file for divorce in New York, even if your spouse lives in another state, as long as you have lived in New York continuously for at least two years before filing for divorce. You can also file in New York if you lived in New York continuously for at least one year before filing for divorce and:

  • You married in New York
  • You lived in New York as a married couple
  • The grounds for divorce happened in New York

New York allows no-fault divorce for marriages irretrievably broken for at least six months. If you meet the one-year residency requirement, you could file a divorce in New York against an out-of-state spouse as soon as six months after they leave the state. As a result, they would need to hire a New York divorce lawyer and travel to New York to attend court.

Time to Prepare

When you file first, you get the luxury of time. You can gather your evidence and take time to decide what to ask for. It also means your lawyer has time to prepare documents.

When your spouse files first, you have a deadline to respond. You may need to prepare your response without all the documents you need. And you will be playing defense rather than offense.

This becomes even more significant in preparing for trial. When you are the plaintiff, you present your case first and have significant control over the order of evidence, witnesses and other strategic decisions. 

Choice of Lawyer

One of the most important decisions in your case is which lawyer to hire. When you file first, you can take the time to choose the right lawyer. Since many lawyers offer free consultations to new clients, you can talk to several before choosing one.

Another benefit of choosing your lawyer first is that you disqualify certain lawyers from representing your spouse. Thus, if your town has one well-known family law firm, you can hire them to represent you first, preventing your spouse from hiring them.

Understand When to File First

Although you may gain some strategic advantages by filing first, there are situations where you will gain no advantages. There are even some disadvantages to filing first, such as giving your spouse a preview of your arguments. To discuss your divorce and whether you should file for divorce first, contact Aiello & DiFalco, a family law firm in Garden City, New York.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.