It’s a question we hear frequently. In some situations, it may be to your advantage to file for divorce first in California. But each divorce is unique, so what benefits one situation may be a disadvantage in another. Read on to look at the pros and cons of filing first so you can make an informed decision. Keep in mind that our experienced family law attorneys are available to help you sort through the options to determine what would most benefit you.

The Pros of Being the First to File for Divorce

  • More time to plan. Divorces require a great deal of planning, including pulling together financial records that are necessary for dividing the assets and debts. Once the filing is complete, the other spouse has only 30 days to pull their case together and file a response. But it’s also valuable because it gives the filer time to adapt emotionally to this stressful situation. Having time to work through anger and grief can help you approach the divorce more carefully and calmly and may provide more of a sense of control over the process.
  • Choice of attorney. Filing first usually means you have the ability to interview and select the attorney you think is best suited to your case. The attorneys you don’t select are often ethically prevented from even speaking with the other spouse once they’ve consulted with you. That could leave them with fewer choices for solid representation.
  • Presenting first at any court proceedings. The person who files first usually is the person who gets to present first if the case goes to court. That means getting your side of the story front and center before the other side can present.
  • Choice of jurisdiction. The person who files first usually chooses where the divorce will be handled. If the couple has separated and is living far apart, being first allows the divorce proceedings to be held nearby instead of inconveniently far away. It can also affect how assets are divided if the spouses are now in different states.

The Cons of Being the First to File for Divorce

  • The first to file pays the initial filing fee. There’s a fee to the court (currently slightly under $500) when the divorce is first filed. There are times when that fee is waived or avoided if both spouses come to a complete marital settlement agreement.
  • Providing details to the future ex. It’s typical for a divorce petition to include how the filer would like the assets and debts to be divided, who should have custody of any minor children, or what (if any) spousal support should be paid. That allows the other spouse a head start in how to respond.
  • Presenting first at any court proceedings. Yes, that was listed as a pro. Sometimes it is, as the first to present can set the tone and make a compelling opening case. But the other side can benefit from hearing the opening statements and adjusting their own case accordingly.

Does Filing First Give Me More Weight with the Divorce Court Judge?

There’s no evidence that filing the case first provides any benefit from the judge. Yes, you get to present first in court, but the other spouse will also testify. They could tell a story that is contrary to what you’ve said, and the court could then expect you to respond and explain.

Another factor is that California is a no-fault divorce state. That means neither side has to be proven to be at fault for the dissolution of the marriage, such as when one spouse initiates an extramarital affair. All that’s required for divorce is for the proceedings to be filed. That means that being first to talk in court about a soon-to-be-ex’s infidelity wouldn’t have as much bearing as it would in a fault state.

However, in cases of abuse, whether spousal or of a child, that testimony can have an effect on the final rulings in terms of asset division and custody.

How Long Do We Have to be Married to Have Assets Divided 50-50?

California is a community property state. That means it doesn’t matter how long you were married; any marital property is broadly divided 50-50. So if you’re concerned that you haven’t been married long enough to receive 50 percent of the marital assets, rest assured that it’s not an issue.

However, the community property concept only applies to marital property. If one spouse has assets they owned before the marriage and never brought into the marriage through use (for example, a house), it can be argued that those assets aren’t subject to the 50-50 division and belong to one spouse only. Bank accounts and other investments can be tricky because the account may have been created prior to the marriage and in one name only. But if those funds were used to benefit both parties in the divorce, such as used to buy furniture or pay the mortgage, they could be considered marital property, not separate.

What Should I Do if I Want to Begin Divorce Proceedings?

If you think your marriage is irreparably damaged and it’s time to begin divorce proceedings, call us at 949-542-6209 (Newport Beach) or 714-542-6200 (Santa Ana) for a free 30-minute case evaluation. Because every divorce is different, and divorce itself is one of life’s most stressful events, having an experienced, compassionate attorney on your side to help you through is highly recommended.