In California’s no-fault divorce system, you don’t need to provide a specific reason or prove wrongdoing to file for divorce. Once you’ve decided that it’s time to divorce your spouse, it’s important to consult with an experienced family law attorney and file your divorce petition sooner rather than later. Filing first is generally advantageous, but not always for the reasons you might expect. There are a few misconceptions as well as drawbacks to be aware of.
Advantages Of Filing For Divorce First
Taking the first steps of divorce can be tough, but you don’t have to do it alone. Consulting with a divorce attorney can be an empowering move toward reclaiming control over your life and future. Any lawyer or law firm you’ve consulted with won’t be able to represent your spouse, even if you do not end up formally retaining their services.
The right lawyer can have a powerful impact on the outcome of your case. Securing your first choice of attorney before your spouse gives you the benefit of having legal representation that truly aligns with you and understands your unique situation.
Jurisdiction
If you and your spouse are living in different states or countries, filing first gives you the important advantage of choosing where the divorce will be handled. The divorce jurisdiction can be one of the most significant factors in how assets are divided and how custody decisions are made.
Filing first in the jurisdiction of your choice (assuming you meet residency requirements) can help you avoid inconveniences like having to travel out of state during proceedings. Even if you live in the same state but different counties, the spouse who files first can choose the county for the divorce.
Case Preparation
By taking the initiative to file for divorce first, you give yourself the time to gather your thoughts, collect evidence, and work with your attorney to plan and prepare your strategy before your spouse gets involved and the process becomes more complicated. This includes organizing your financial documents and, if necessary, compiling any evidence of financial fraud or domestic abuse (whether physical, verbal, financial, sexual, or through technological actions) to present to the court.
Timing And Finances
As the party who submits the petition for divorce, you set the filing date. This marks the official start of your case, and Automatic Temporary Restraining Orders (ATROs) immediately go into effect.
ATROs prohibit either spouse from:
- Cashing in or modifying insurance policies that benefit a spouse or child
- Selling, transferring, borrowing against, or disposing of community property without the other spouse’s written consent or a court order
- Spending funds or incurring debt for purposes outside of “ordinary course of business” or “necessities of life”
ATROs are beneficial, particularly in high-asset divorces in California, where all assets and debts acquired during marriage are generally considered community property. However, if you earn less than your spouse or rely on a joint bank account funded entirely by their income, you might be worried about the immediate impact on your day-to-day expenses and ability to pay legal fees.
Kaspar & Lugay LLP attorneys can advise you on the best time to file, considering how ATROs might affect your specific financial situation. We can also file a request for temporary spousal support or temporary child support to help you maintain stability as the case proceeds.
Child Custody
As a parent, you can request temporary child support and custody arrangements once your divorce case is filed. Filing first helps ensure these requests are made as early as possible to protect your child’s best interests.
Physical Protections
If you need to seek protection from your spouse, Kaspar & Lugay LLP will take immediate action to request a domestic violence restraining order (DVRO) to protect you and your children, property, or pets. A domestic violence restraining order issued during divorce proceedings sets boundaries on contact and communication and can limit the restrained person’s access to joint assets and property.
You may file a request to reside in your marital home without your spouse. If there is credible evidence of domestic abuse, or if the court determines that it would be in the best interests of your children to live with you in the marital home without your spouse, the court may grant you temporary exclusive possession during the proceedings.
Disadvantages & Misconceptions Of Filing For Divorce First
As the party who files first, you are the Petitioner responsible for paying the divorce filing fee. While this may be seen as a disadvantage of filing first, many find this to be a relatively small investment given the overall benefits of initiating the divorce process on one’s own terms.
If your case does not settle through negotiations, it will proceed to trial. The Petitioner typically presents their case first, with the Respondent making their statements in response. Some may feel that it is better to present first to “set the tone,” while others prefer to hear the other party’s arguments before responding with their own. Regardless, a trial judge will neither automatically favor the Petitioner nor automatically disfavor the Respondent.
At Kaspar & Lugay, our trial-proven attorneys know how to build a winning court case to protect your assets and your children’s best interests, regardless of who filed first.
Don’t Wait On Your Spouse: Book A Confidential Consultation First
Stories of divorce often start with one person being “blindsided”. Don’t wait on your spouse to make the first move.
Being the first to file offers psychological and practical benefits. Instead of being caught off guard and reactive, filing first can help you feel more confident, calm, and focused as you navigate what lies ahead.
You have the power to take control. Consult with our family law attorneys today and file for divorce as soon as you are ready.
Call Us Today: 415-789-5881
Request a Consultation: https://www.kasparlugay.com/contact/
