Does It Matter Who Files for Divorce First in Florida?

Welcome to the Ayo and Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa to Orlando and Miami.

In this edition, I took on the premise many seem to have that you will secure the upper hand by filing first in a divorce. As you will see, in general our attorneys do not see a major advantage to doing so, but there are nuances when it comes to this subject they identify that could be a factor in your divorce.

I discussed filing first, including some pros and cons, with our attorneys. We talked about these issues with a legal team gathered for the day. Here is what we discussed:

Is there any advantage to filing for divorce first?

In general there is no clear advantage to filing first; however, the party that files first has generally done the research and the diligent inquiry as to how he or she needs to prepare for divorce since they are taking the first action.

No, I have never seen an advantage. It’s not a race to the courthouse because under our rules if your spouse files most of the time we file a counter-petition, so now you have two petitions pending. It never benefits you to get there first because we are all playing under the same rules. The only reason you might consider it is if there is any emergency or child abuse where you need to get in front of a judge right away. Otherwise both cases proceed along together.

There is a temporary psychological advantage. But that advantage is short lived. The person who files first obviously has thought it out, retained an attorney, prepared, and discussed what is happening with their friends. That can bring a certain feeling of being in control of the situation. But as soon as the other party plays catch-up and does the same steps – the psychological advantage disappears.

Not at all. At the end of the day it’s what you have, the legal argument you put forth, and the law that dictates what happens. Not who files first. I honestly don’t see an advantage or disadvantage to filing first. I guess if there is an upside it could be for the person receiving the filing doesn’t have to pay filing fees. Also, in filing first there are some risks. For example, let’s say someone filed for divorce but fails to address alimony for some reason. So as a result unless alimony is brought up in the counter-petition, the person who filed first runs the risk of alimony not being part of the divorce.

Alberto, you mentioned the person who files first may have the benefit of better research into a situation. How does that benefit you?

Generally, the person who files first has thought about all of the issues and more than likely has thought about the repercussions and consequences regarding a divorce. But on the other side of that, there is no benefit to filing for divorce if you are not prepared. Also consider this. In many jurisdictions in Florida when you file for divorce, you immediately receive a standing order put into place and that order prevents the dissipation of assets. That order triggers protection of the marital assets therefore there may not be a clear advantage to filing first. So if you don’t file, you may run the risk of having assets dissipated in many counties.

Bruce, you talked about the other side of the coin, which is rushing into a divorce without that due diligence. So would there be a disadvantage to rushing to file because you think need to get there first?

Yes, some people seem to think they need to get there first. The problem with that is in most jurisdictions you cannot get a temporary hearing before you go to mediation. So for example, you filed your case and you believe you have an emergency. And you call a judge regarding you emergency request and the first thing they are going to ask is ‘did you go to mediation.’ If you say no, they will hang up on you, so to speak. Judges will just not entertain an emergency hearing unless you have done mediation. It’s so rare. I have been doing this for 30 years and I think I can count on two hands with fingers left over where I have gotten a judge to say something is an emergency. So even if you filed first you are not going to get any advantage and the judge is going to force you to go to mediation first.

Jeana, you don’t see a monetary or child time-sharing value in filing first, but do you agree with Howard that in some cases there are psychological benefits of filing first?

Not usually as to monetary. We are a no-fault state. But it is always good to be on the offensive and not the defensive. Some people mentally do better when they feel they are the ones kind of running the show as the petitioner. They seem to do better than always being responsive to the petitioner. Generally, financially I don’t see an advantage, but emotionally for a lot of the clients it is better to be on the offensive than the defensive. I just think it’s a sense of having control over the process. I mean divorce has so much uncertainty to begin with. So to be able to have any control over the process a lot of times provides that emotional stability. And there is not much emotional stability in divorce.

Do you ever see any circumstances where people feel they shouldn’t file first?

It also can depend on your religion. A lot of times I have clients who are Catholic who tell me ‘there is no way I’m filing first.’ So a lot of it is personal belief about whether or not it is a sin to divorce.

Does the court care who files first? Does that give someone any advantage?

Each party is assigned a legal name depending on who files first. The person that files is labeled the Petitioner. The other is labeled the Respondent. I agree that an uninformed member of the public might take a liking to one of these labels. But attorneys don’t seem to care who is called what. I can tell you that I don’t care. Also, judges are attorneys that used to practice. I have never seen them care which person acquires which label.

I have to agree with that. I have never seen one comment that suggests an advantage or disadvantage to either the Petitioner or the Respondent designation.

I think it all comes down to doing what is best for your particular situation. Don’t rush to court because of some perceived advantage. That advantage probably doesn’t exist. Instead you should pay attention to the basics. Prepare thoroughly and don’t sit on your situation. Move forward in a positive way.

Nicely said Jason. I am definitely on the same page as you!

Another excellent discussion! That is the advantage of getting a great group together to brainstorm an issue. That wraps up today’s roundtable discussion. Be sure to look around our website for more in-depth articles on divorce, custody, and protecting your personal rights.. Meanwhile we hope to see you come back to the Ayo and Iken roundtable.