Who Should File First?

A guest on Alabama Divorce Questions asked me a great question yesterday, whether there’s an advantage or a disadvantage to being the first one who files for divorce. I thought it might be helpful to lay out the principles as I understand how they work in Alabama. I don’t know for sure the extent to which these same principles apply in other states, but I think they apply pretty generally.

First, the person who files gets to decide where to file. For example, when the spouses live in two different states and both spouses have minimum contacts in both states, the first one to file (and get service of process) gets to choose which state will have jurisdiction over the divorce case. Depending on the states, this can be a powerful tool. Here are just a few of the factors that might change depending on which state’s law governs:

  • States treat property division differently, particularly when it comes to dividing retirement plans
  • Different states have different methodologies for calculating child support
  • Different states have different standards for alimony
  • Different states have different approaches to child custody, to visitation, and to relocation with children
  • Second, the one who files is the plaintiff, and in Alabama divorce trials the plaintiff presents his or her case first. I’ll let you decide whether that’s an advantage or a disadvantage. I’ve heard reasons for both.

    Third, spouses in a troubled marriage often get locked into a waiting cycle, where neither wants to be the one who files, so both warily glare at each other and wait for the other to make the first move. I’ve never argued against this “guns drawn and cocked” waiting period, because it usually gives one or both spouses extra grieving time. And the more time spouses have to grieve before they get people like me involved, the less money they spend on people like me.

    Fourth (and this may be the dynamic driving the “guns drawn and cocked” waiting period), lawyers and judges know there’s simply no correlation between which spouse files and which spouse is the leaver in a marriage. However, the culture doesn’t get this yet. So, wrong though it may be, the culture sometimes assumes that the one who filed for divorce is the one who wanted the marriage to end.

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