Today, we’re going to answer a question that I get a lot: Will it hurt my case if my soon-to-be former spouse files for Divorce First? The answer to that question is usually no, but there are some important exceptions I think we need to work through.
The first thing I want to tell you is that you will not be at a substantive legal disadvantage if your spouse files for Divorce before you do. Since the Dissolution act was modified a few years ago, the primary functions of a Petition for the Dissolution of Marriage are to Identify the parties, identify if they have any children, assets or debts, and to ask the Court to Dissolve the Marriage. If your spouse failed to ask for something that you think ought to happen in the Divorce, then you can file a Counter-Petition along with your Answer to the Complaint, and you can ask for whatever they left out that way. The party who is filing first does get to pick what Courthouse they file in, but if you’re somewhere that doesn’t make sense, you can Petition the Court for a change of venue. So from a substantive legal standpoint, if you’ve both got lawyers getting ready to file, it’s really not a big deal if your spouse files for Divorce before you do.
There is one major caveat to what I just said: If your spouse files first, then starts filing Motions for Temporary Relief right away, and you haven’t started to prepare to get divorced or figured out which lawyer you wanted to hire yet, then yes, you’re at a disadvantage. If you haven’t spoken to an attorney yet, and you get served with a Divorce Petition, then you probably ought to make some calls the next business day, and try to start talking to people within the next week so you can figure out who you want to hire. This is particularly true if the summons you receive contains a date for a hearing, or if there is a Motion for Temporary Relief on file. The last thing you want is to find yourself in a contested hearing, unrepresented, against a spouse who has hired a lawyer. In that situation, you’re at a significant disadvantage, and you need to correct it as quickly as possible.
