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Who Should File For Divorce First?

by Steve Fritsch on March 10, 2013

Signed and Filed Divorce PapersMany people contemplating divorce want to know who should file first.  In the eyes of the court it really does not matter.  Because California is a no fault state, the court does not have to know the reason for the divorce nor determine who is to blame for the divorce.  As such, the court does not care who files first.

Although the court does not care who files first does not mean that a party should not.  A party may need to file first to obtain orders.  For example, if one spouse is not providing financial support, there cannot be support orders made until a divorce is filed.  The longer a spouse waits to file, the longer it will take to get support orders.  A spouse may also want the Standard Family Law Restraining Orders (ATROs)to go into effect on the other spouse.  This can only happen if one files for divorce and serves the other party.  The ATROs order that children cannot be removed from California, cannot change insurance beneficiaries, and cannot transfer, conceal or dispose of assets.  For example, if a spouse believes the other spouse is going to cash out a significant amount of stock or move with the children to another state, it would be beneficial to be the first to file and get the other spouse served so he or she is restrained from certain behaviors.

Finally, it may also be beneficial to file first to establish the date of separation which determines when assets and debts become separate property.  Although filing for divorce does not necessarily establish the date of separation, it definitely helps support the argument for it.  If there is a disagreement as to the date of separation, the court can look at when a party filed to help determine what the date of separation should be.

In sum, the court does not care who files first and will not treat the non-filing spouse any different than the spouse who files first.  However, in some situations as shown above, it may be beneficial to file first rather than waiting for your spouse to file.  If such a situation arises, filing first may be the right call.

DISCLAIMER:  The above article is for informational and educational use only and is not intended to be legal advice in any way.  One should consult with an attorney for legal advice.

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