File For Divorce Before Your Spouse

Should You File for Divorce First?

A divorce officially starts when one spouse files a petition in court in order to request a decree of divorce. Filing a petition lets the other spouse know that a divorce is being sought. It also starts the clock on various steps and deadlines required by the court. While there are some advantages to being the first to file in most scenarios it will not make a difference.


The name given to the party that files first is the Petitioner and the non-filing spouse is called the Respondent.

The clearest advantage to being the first to file, Petitioner, is that at trial the Petitioner gets to present his/her evidence first. If the character of Respondent is in question then this might be the first witness your attorney calls. This will prevent Respondent from changing his/her testimony to improve his/her case depending upon the evidence presented at trial. Keep in mind that many family law cases settle before ever going to trial thus there may be other factors at play that are more important.

Another consideration for filing first is that you may obtain an advantage when it comes to jurisdiction or location of the divorce proceedings. Jurisdiction refers to the court’s authority to hear a case as determined by its legal boundaries. In some cases where a case could be heard in more than one court location, filing first would make sure that the case is heard in the jurisdiction that is more convenient for the Petitioner.


The first misconception is that filing first will somehow make you the more righteous or that you will gain favor with the Judge.

  • California is a “no-fault” state when it comes to divorce or legal separation. It does not matter if you are filing for divorce because your spouse cheated on you, or because you just don’t get along anymore. “Fault” is generally not a factor in determining spousal support (alimony), child support, child custody, or division of property.
  • Therefore, it does not help you to be called the “Petitioner”, nor does it hurt you to be called the “Respondent”. This is not like being called a “Plaintiff” or a “Defendant” in a personal injury case.

The second misconception is that the children will blame the parent that filed for Divorce. If you have already attempted counseling and your marriage is still toxic your children will probably be psychologically better off and more likely to thrive if you are divorced. Often the blame shifts during the divorce from one parent back to the other unless both parents can find a way not to use the children as pawns in their negotiations. The best course of action is to only speak well of the other parent in your children’s presence and to involve your children as little as possible in the divorce.

The Ball is In Your Court

While the idea of filing for a divorce and going through the divorce process can be daunting, there are situations that make filing first not only an advantage but a necessity. The best course of action is to meet with an attorney and determine a strategy that works best for your individual situation.

At Buncher Family Law, our goal is to protect your best interests as well as those of your family. Contact our office to schedule a consultation.

Posted in California Divorce Lawyer, Court Preparation.