Should I File First?

Posted on November 10, 2021 in

If you’re anticipating a messy divorce with lots of fighting, there may be advantages to filing first. But what if you’re hoping for a divorce that’s a bit more peaceful?

In that case, there are fewer advantages to being the first one to send in the paperwork.

And there may actually be disadvantages.

What’s clear is that no matter who files first, if you’re headed for a divorce, the best thing you can do now is start planning.

When to file in an uncontested divorce

I’ve seen how traumatic messy divorces can be — both to divorcing spouses and to their children. I’ve also watched couples work hard to end their marriages respectfully and amicably. I’ve even seen it from couples who weren’t sure they’d be able to come to agreements on key issues.

Uncontested divorces provide a better divorce experience for all the people involved. So I approach the question of “should I file first?” with a broader question in mind:

“What action is going to help me have a successful and peaceful divorce?”

Advantages to filing first

Most of the advantages to filing first are only relevant if you’re anticipating a contentious divorce. In that instance, parties are trying to put themselves in the best position to take control of the proceedings.

For instance, one of the most cited advantages to filing first is the ability to pick your attorney.

Now, don’t get me wrong. Choosing a good divorce attorney who will effectively represent you is important. But people concerned about filing first often refer to a specific practice. One spouse sets appointments with all the divorce attorneys in town to keep their spouse from hiring a quality attorney.

The strategy relies on the fact that lawyers can’t represent someone if they have a conflict. So, say the wife tells the attorney confidential information during a consultation. The attorney then can’t represent the husband even if the wife never hires them.

The practice was sensationalized on the HBO show The Sopranos. But most couples — even divorcing ones — don’t have the time or the animus to go to those lengths.

Hopefully neither you nor your spouse would engage in a process like that.

You may have heard of a few other benefits to filing first.

  • If you’re the first to file, you can set the date of separation. This is important in states when you need to be legally separated for a specific period of time before a divorce can be finalized. But in Georgia, there’s no set time for how long you have to be separated before you can get divorced.
  • Filing first also allows you to be the first to allege fault, thus putting your spouse on the defensive. When you allege fault, you’re telling the court that your spouse’s actions caused your divorce. An alleged fault must be proved. That means fault divorces are costly and almost always drama-filled.

What’s much more important than filing first is seeking legal advice early in the process. If you think you’re headed for a divorce, contact a lawyer to find out what your options are.

See: How to File for Divorce in Georgia

Disadvantages of filing first

The biggest drawback to filing first is that you run the risk of unnecessarily creating a contentious situation.

Let’s dig into this and talk about the difference between a contested and an uncontested divorce.

Contested vs uncontested divorce

A contested divorce is one where the parties ask the court to make decisions on the details of their divorce.

These details might be how to divide their property or schedule child custody. Couples may do mediation or come to a settlement agreement before their case goes to trial. But they begin the divorce process with an eye toward litigation.

When someone files a petition for a contested divorce, they’re saying, “I want to divorce my spouse, and I need the court’s help to make that happen. I need the court to decide how we should split our money or set up custody of our kids.”

Compare that to an uncontested divorce. There, parties only approach the court once they agree on all the terms of their divorce. When they do file with the court, they’re asking only that the court approve the agreement they’ve already made.

Uncontested divorces are faster and less expensive than contested divorces. They’re also much more peaceful and free of drama.

See: What Is an Uncontested Divorce?

Increasing the possibility of a contested divorce

So when you file first, you’re telling the court that you want a contested divorce. (Don’t freak out if you’ve already filed and you want an uncontested divorce. There are still ways we can help.)

You’re also telling your spouse something about how you want the divorce process to proceed. When someone gets served divorce papers, their response is rarely pleasant. They’re probably immediately defensive and gearing up for a fight.

If you want the possibility of a peaceful divorce, the better step is to tell your spouse in person that you want a divorce. Once they’ve had an opportunity to process that information, tell them about the time and expense you both can save with an uncontested divorce. And if you have children, talk to your spouse about how you want to support your children throughout the divorce process.

These conversations aren’t easy, but they can set a couple up for a drama-free, uncontested divorce in a way that filing first rarely does.

See: How to Choose an Uncontested Divorce Lawyer

Filing for an uncontested divorce

Being the first to file doesn’t create any advantage when you choose an uncontested divorce. Instead, you or your spouse will file the petition for divorce your (or your spouse’s) attorney created. That petition will include all the terms you’ve already agreed on.

In most cases when the paperwork was drafted by an attorney, the judge finalizes the divorce without the need for a final hearing. And the parties move forward with a new chapter in their lives.

If you’re ready to pursue an amicable divorce, contact us for help. We specialize in peaceful, uncontested divorces for clients that want to avoid the drama of a messy divorce.