Timing and strategy can play a significant role in divorce. One question that often arises is whether it matters who files for divorce first. In this article, Freed Marcroft’s team of experienced divorce and family law attorneys will explore this topic and highlight the pros and cons associated with who files for divorce first.
There can be strategic advantages to filing for divorce first. As the Plaintiff, you have the power to choose the location of the divorce proceedings. This can be particularly beneficial if you and your spouse reside in different states or countries.
For example, filing first near your home in Connecticut can save you from having to travel to your spouse’s state of residence for court. In some cases, one jurisdiction may have laws that are more favorable to you. Finally, often filing first allows you to present your case first. It can also set the tone for the divorce.
On the other hand, letting your spouse file first can allow you to learn more about your spouse’s intentions. Holding off on filing yourself may also give you additional time to mentally prepare for divorce.
What’s most important to know is that who files for divorce first rarely affects how the court decides key issues like property division, alimony, or custody. While filing first can have some strategic advantages, every divorce is different, and outcomes depend on your specific circumstances. Of course, an experienced Connecticut family law attorney can provide custom advice tailored specifically to you. Like so many things in divorce, the answer to whether or not you should file first really depends on your individual goals.
(That’s exactly why the Goals & Planning Conference is our first step at Freed Marcroft.)
Please read on to learn more.
Does it Matter Who Files First for Divorce in Connecticut?
First, let’s dispel a common myth. Many people think that a court reads some significance into who files for divorce. It’s important to know that they do not.
In Connecticut divorces, you still must have a “Plaintiff” (the person who files first) and a “Defendant” (the spouse of the person who files first. But there is no implication to the court that the Plaintiff or Defendant is “at fault” for the marriage ending. The Plaintiff isn’t “the one who left,” and the Defendant isn’t “the one who misbehaved.”
The vast majority of divorces in Connecticut are “No Fault,” which means neither spouse has to prove that the other caused the marriage breakdown for the court to order a divorce. Instead, either spouse’s testimony that the marriage has irretrievably broken down is sufficient for the court to order the divorce. (The cause of the marriage breakdown is one of several factors considered when deciding property division and alimony.)
Read: What Should I Expect at My Initial Divorce Consultation?
The Significance of Filing for Divorce First
Filing for divorce first can shape how the process unfolds. Notably, the spouse who files is the Plaintiff. The Plaintiff generally decides the case’s jurisdiction and court district, which can significantly impact the proceedings. (Jurisdiction is complicated, and there are exceptions to this, which you can discuss with an experienced divorce attorney.)
More Influence Over Jurisdiction
Jurisdiction selection can have a significant impact when, for example, the spouses reside in different states or countries. Filing in a familiar, convenient location can ease logistical burdens. It is especially true when it comes to things like in-person court appearances and legal representation. For example, say you live in West Hartford, but your spouse lives in Westport. Filing first with the Hartford Family Court might save you substantial travel time for court appearances.
Additionally, consider working with an experienced attorney from a statewide divorce practice like Freed Marcroft’s to benefit from their insights on the logistical situation at various Connecticut courthouses. For example, the Stamford Family Court might be working through a backlog of cases, meaning your divorce might proceed more quickly if you file in Hartford. As you can imagine, this all becomes even more significant in international divorces.
Read: CT Jurisdiction Over Divorce for Non-Residents
Set the Narrative
Next, filing first also allows that spouse to shape the divorce’s narrative. As the Plaintiff, they present their side of the story first. This may influence how the court initially views the situation and sets the tone for the process. However, it is unlikely to directly or significantly impact the judge’s decisions regarding custody, property division, or alimony.
Control and Empowerment
Moreover, filing for divorce first can also instill a powerful sense of control and empowerment. Taking that first step can offer a sense of control and empowerment in what can feel overwhelming and chaotic. It can signal a readiness to move on and establish new boundaries, a vital part of the healing process. On the other hand, being the Defendant can sometimes leave one feeling reactive, which may contribute to feelings of helplessness or anxiety as they wait to understand the next steps. This shift in power dynamics can play a crucial role in how both parties approach the divorce and any potential negotiations.
Legal Implications of Filing for Divorce First
In Connecticut, the spouse who files first may have certain advantages — but they are more procedural than legal. For instance, the petitioner generally chooses the venue (aka jurisdiction) for the divorce proceedings. Often, this is more of a convenience issue than something that materially affects the overall outcome — for example, when selecting between two Connecticut courthouses. However, when two states potentially have jurisdiction over the same divorce, the venue will also determine what laws apply — which can materially impact the divorce’s outcome.
Filing First and Timing
In some situations, filing for divorce first can result in a more favorable timeline regarding hearings and court dates, giving the Plaintiff a head start and a sense of proactive control over the process. For example, by taking the lead, you have the strategic advantage of timing the Automatic Orders, which essentially prevent spouses from making any financial moves outside the ordinary course of what was done during the marriage. (Plaintiffs are bound by the Automatic Orders when the complaint is signed, Defendants when it is served.)
Read: What are the “Automatic Orders” in a CT Divorce?
Getting Prepared
Additionally, the first spouse to file should have the opportunity to gather evidence and documentation in advance and line up potential experts. For example, you can scan or copy financial data, such as account statements and tax returns, ahead of filing and get them to your lawyer. This avoids a time crunch once the divorce begins (and potentially avoids difficulty getting access to documents if your spouse has an adverse reaction). This can also be particularly advantageous when preparing for hearings on urgent pendente lite or ex parte matters, other financial or custody arrangements, or other key issues. Gathering necessary information early can also help in settlement negotiations down the line.
Filing for Divorce and Who Goes First at Trial
One thing to consider when considering potential advantages to filing first for divorce in Connecticut is that the Plaintiff puts on their case first at trial. Whether this is an advantage or not is debatable. First, it’s important to remember that few Connecticut cases have a full trial. Some might argue that going first at trial is advantageous because yours will be the first version of the story the judge hears. However, judges are trained not to decide until the evidence and arguments are complete. Plus, others might argue that going second at trial is advantageous because you and your legal team will have heard the Plaintiff’s case before you present yours.
Read: What Is a Divorce Trial?
However, it is essential to remember that the filing party does not inherently dictate the court’s decisions regarding substantive issues like property division, custody, or alimony. Connecticut courts typically aim for equitable solutions based on the facts presented rather than the order of filing. Therefore, while there may be some legal advantages to filing first, the overall impact on the divorce’s outcome will largely depend on the specific circumstances of each case and the arguments presented by both parties.
Psychological Impact of Filing for Divorce First
The psychological impact of filing for divorce first is profound and complex. For many, taking this initiative represents a significant act of agency in a situation that often feels disempowering. This decisive action can foster feelings of control and empowerment, crucial in mitigating the helplessness that often accompanies the dissolution of a marriage.
However, initiating a divorce can also bring up complex emotions, including guilt, sadness, and anxiety about the unknown. These emotions can complicate and even prolong the process. If you’re considering divorce, it’s important to seek the support of a mental health professional experienced in divorce. They can help you navigate this transition with grace and ensure you don’t get stuck in the emotional challenges.
On the other hand, if one spouse allows the other to file first, they feel relieved or even grateful for being spared the burden of initiating the divorce. This can give them the comfort and time to mentally prepare for the upcoming changes. However, it can also lead to feelings of vulnerability or anxiety as they wait to see how their spouse will frame the divorce. Understanding these psychological dynamics is helpful for both spouses as they navigate the complexities of divorce. Recognizing the emotional weight of these decisions can help couples better cope with the challenges ahead and hopefully lead to a more amicable divorce.
Factors to Consider when Deciding Who Should File for Divorce First
When you’re deciding whether to file for divorce first, there are several factors you’ll want to consider.
Filing First and Your Choice of Divorce Attorney
First, taking a proactive approach to your divorce means that you have the opportunity to select and meet with your attorney. You’ll get insights and recommendations so that you can decide on and start implementing a strategic plan. Select a lawyer experienced in all divorce modalities so that you can also learn more about the alternatives to divorce litigation — mediation and collaborative law. You can also explore your attorney’s advice about proposing one of those ADR approaches to your spouse.
Note that hiring a lawyer is not the same thing as filing for divorce. At Freed Marcroft, we work with many clients before they are ready to file — it all depends on the strategic plan we develop for your case based on your goals. It often makes sense to be the first to assemble your legal team. This allows you the flexibility and control over the plan. And, you can retain the divorce firm of your choice before your spouse can hire that divorce attorney.
Read: Four Things to Know Before Hiring a Divorce Attorney in CT
Jurisdiction
Next, suppose your divorce lawyer indicates that you are one of the people who have two (or more!) options for where to file your divorce. In that case, you may well want to file first so that you know your divorce will be in the courthouse your attorney recommends.
Emotional Readiness
Another essential factor is the emotional readiness of both spouses. The individual more emotionally prepared to handle the complexities of divorce may benefit from taking the initiative to file. This readiness can impact how effectively they engage with their lawyer, gather evidence, and negotiate solutions. Sometimes, one spouse is still in denial or struggling with the emotional fallout of the relationship ending and winds up dragging their feet to try to avoid the reality of the divorce. In that case, it may be more beneficial for the other spouse to take the lead in filing. Promptly filing for divorce can also help ensure that the dissolution moves forward in a timely manner.
Cooperation or Conflict
Additionally, consider whether you think you and your spouse will be able to proceed cooperatively or whether you anticipate serious conflict. If both parties are amenable to an amicable divorce, who files first may not matter. However, if there is a high likelihood of contention, filing first can help you establish a proactive — and in some cases, even cooperative — stance. There are also ways to deliberately set a tone when you’re the one to file first — including indicating an openness to dialogue that can take down the temperature and benefit negotiations and communications. Mulling over these factors and discussing them with your attorney can help you decide on the best approach for your situation and goals.
Pros and Cons of Filing for Divorce First
Filing for divorce first comes with a blend of advantages and disadvantages that can significantly impact the overall process. Among the pros, the most notable is the control it offers the filing spouse. This control extends to the choice of jurisdiction and the narrative surrounding the divorce. By presenting their case first, the petitioner can outline their perspective and priorities, which may establish a more favorable negotiation framework. This advantage can be particularly crucial if contentious issues like custody or financial disputes are at stake.
Another significant advantage of filing first is the opportunity to gather evidence and prepare a case. The petitioner can begin collecting necessary documentation, such as financial statements, property records, and other relevant information. This proactive approach can lead to a more organized and compelling presentation in court, enhancing the likelihood of a favorable outcome. Additionally, filing first can expedite the divorce process, allowing the petitioner to begin moving forward with their life sooner than if they were to wait for their spouse to take action.
However, there are also cons associated with being the first to file. This step may create an adversarial dynamic, particularly if the other spouse is caught off guard or feels blindsided by the decision. This can lead to heightened emotions and potentially escalate conflicts, making the negotiation process more challenging. While there are some situations where your lawyer might recommend you not give your spouse advance notice that you intend to file for divorce, in many cases, a discussion with your spouse in advance can help you avoid adding fuel to the fire. Again, talk to your lawyer and make a plan.
Common Misconceptions About Filing for Divorce First
When it comes to filing for divorce first, several misconceptions can cloud judgment and lead to misguided decisions. One prevalent belief is that filing first guarantees a more favorable outcome in court. While, as we have discussed, it is true that the Plaintiff has certain procedural advantages (like selecting an attorney first and choosing the venue, judges base the ultimate decisions regarding custody, property division, and support on the merits of each party’s case, not merely on who initiated the divorce. Courts aim for equitable resolutions, emphasizing the facts and circumstances rather than the order of filing.
Another common misconception is that the spouse who files first has greater leverage in negotiations. While the petitioner may have the opportunity to set the tone for discussions, it does not inherently mean they will have the upper hand in reaching an agreement. Effective communication and negotiation strategies play a vital role in determining the success of discussions, regardless of who filed first. Both parties should approach negotiations with an open mind and a willingness to reach a fair resolution rather than overstate the importance of who filed first.
Lastly, many individuals believe that filing for divorce first will prevent their spouse from contesting the divorce or its terms. However, this is not the case. The Defendant has the right to challenge various aspects of the divorce, including custody arrangements and property division, irrespective of who filed first. This misconception can lead to unrealistic expectations and may hinder effective communication between spouses, making it essential to understand the realities of the legal process and focus on collaborative solutions.
Alternatives to Filing for Divorce First
While filing for divorce is often seen as the primary route to ending a marriage, there are some alternatives to consider. One option is to engage in mediation before initiating any formal divorce proceedings. Mediation involves working with a neutral third party, the “mediator,” to facilitate discussions around the divorce terms.
This approach can help the spouses reach agreements on key issues like custody and asset division and avoid any adversarial litigation. By coming to a consensus before filing, couples may find a smoother path forward and minimize conflict.
Another alternative is collaborative divorce, which focuses on a cooperative approach to resolving disputes. In a collaborative divorce, both spouses retain their own collaborative divorce attorneys, and both clients and lawyers commit to working together to reach a mutually beneficial agreement. This method emphasizes open communication and problem-solving rather than formality and confrontation. As with mediation, the collaborative route can help couples avoid the stress of court proceedings and maintain a more amicable relationship.
Finally, some couples may opt for a legal separation instead of an immediate divorce. Legal separation allows spouses to separate their lives while remaining legally married. Some people find this provides them the time they need to reflect on their relationship and make informed decisions about their future. This option can be particularly useful for couples uncertain about whether divorce is the right choice. It can also provide a structured environment for addressing financial and parenting issues while allowing both parties to evaluate their feelings and options before proceeding with a divorce.
Seeking Professional Advice when Considering Divorce
When you’re considering divorce, seeking professional advice is critical. An experienced divorce lawyer can provide invaluable guidance throughout the dissolution process. Consulting with an experienced family law attorney can help individuals understand their rights and responsibilities, the legal implications of their decisions, and the potential outcomes of various choices. A knowledgeable attorney can assess the specific circumstances of a case and provide tailored advice that aligns with the client’s goals and needs. This professional support can be crucial for navigating the complexities of divorce and ensuring that individuals are well-informed at every stage.
Additionally, engaging with financial advisors or counselors can benefit divorcing spouses. Financial advisors can help individuals understand the economic implications of divorce, including asset division, alimony, and tax considerations. This knowledge can help you make informed decisions and solidly plan for your post-divorce financial stability.
On the emotional side, a counselor or therapist can provide support as you process your feelings and navigate the complications of ending a marriage. This holistic approach to professional guidance can help you cope with divorce’s emotional and practical challenges.
These steps can lead to a more positive and constructive divorce experience.
Key Takeaways
- It doesn’t imply a spouse is “at fault” for the marriage ending just because they are a Plaintiff or Defendant.
- It often makes sense to assemble your legal team even before you’ve decided to divorce.
- Your goals should drive legal strategy, including whether or when to file.
Next Steps
In conclusion, the question of whether it matters who files for divorce first is nuanced and multifaceted. While there are certain advantages associated with being the petitioner, including control over the process and the opportunity to shape the narrative, the overall impact on the divorce’s outcome is largely determined by the unique circumstances of each case. Legal implications, psychological factors, and personal readiness all play significant roles in shaping the experience of both parties as they navigate the complexities of divorce.
Ultimately, individuals must weigh the pros and cons of filing first and consider their specific situations before deciding. Seeking professional advice from experienced family law attorneys, financial advisors, and emotional counselors can provide valuable insights and support throughout the process. By taking a thoughtful and informed approach to divorce, you can empower yourself to move forward in a way that aligns with their goals and needs.
As you navigate divorce, remember that every situation is unique. While the order of filing may have some implications, the most crucial factor is how both parties engage with the divorce process. Open communication, effective negotiation, and a willingness to collaborate can lead to more favorable outcomes, regardless of who initiates the proceedings. With the proper support and guidance, individuals can successfully navigate this challenging transition and emerge with a renewed sense of purpose and direction.
