Does it matter who files first for divorce?

Divorce lawyers in towns such as Darien and New Canaan are often asked, “Does it matter who files first for divorce?” The short answer is, “It depends.” The Court draws no inference that because the Wife files that the Husband is a bad actor or vice versa. Most cases in Connecticut are filed as “No Fault” divorces, which means neither party alleges grounds other than the “marriage has broken down irretrievably.” However, the cause of the breakdown is still a factor in the Court’s determination of property division and alimony.

Arguably there may be an advantage at trial because the Plaintiff, the one who files first, gets to put on its case first. We all know it’s human nature to hear a story and come to a conclusion without hearing the other side, especially if that story has some “ring of truth.” However, Judges are trained to not make any decision until the evidence and arguments are complete.

Filing first may give you the opportunity to assemble your legal team, including experts, before your spouse does.  This is especially true when your spouse will be caught by surprise. You will want to retain the lawyer of your choice before your spouse has a chance to hire that person. And having first pick of a certain financial expert, earning capacity expert, or other forensic expert can be critical to the outcome of your case.

By controlling the date of filing, you will also have an opportunity to retrieve and assemble documents and records that you may not have access to as easily once your spouse is on board. You can make copies ahead of time of financial data such as account statements, loan applications, income-related documents and tax returns.

By taking the lead, you have the benefit of timing the Automatic Orders, which essentially prevent your spouse, once he or she is served, from making any financial moves that are outside of the ordinary course of what was done during the marriage. Note that as Plaintiff, you also are bound by the Automatic Orders when the complaint is signed.

In a case where spouses have residences in different states or different venues within a state, filing first may mean you can choose one place over another to your advantage. While the law is the same throughout Connecticut, custom, practices, and outcomes do vary from court to court.

Some people feel a psychological advantage in being the one to file for divorce. This may be relevant to the emotions surrounding the breakup, rather than any legally related strategy. On the other hand, there are those who are reluctant to take the first step and would rather wait until his or her spouse files. It can be a very personal matter and really varies from case to case.

At Broder & Orland LLC, we are adept at advising clients on the strategies involved in filing for divorce as well as during the pendency of the case. These matters should be discussed in depth at the initial consult.