Who Should File for Divorce First?

Hossein Berenji, Mar 19, 2023

Generally, it does not matter who files divorce papers first. California is a no-fault divorce state, so the parties do not need to prove “wrongdoing” to end their marriage. Furthermore, the court does not give preference to the spouse who files.

However, there could be some advantages to filing for divorce first in California. Therefore, if you believe your spouse might be preparing to file a petition for dissolution of marriage, it is wise to seek legal advice from a Beverly Hills divorce lawyer immediately.

Advantages of Filing for Divorce First in Beverly Hills, CA

Some benefits of being the spouse to file for divorce include, but are not limited to:

Preparing for the Divorce

If you want to divorce your spouse, putting away some funds and making arrangements to provide for yourself can make the transition to single life easier. California is a community property state. Therefore, your marital property is subject to equal division.

However, an attorney can offer guidance in setting aside money to pay legal fees, obtaining credit in your name, and deciding if you want to move to another home.

Maintaining Your Children’s Current Arrangements

If you are the first to file for divorce, your children should be able to remain in the home and keep their current schedules until a later court date. Your spouse will face difficulty changing child custody and arrangements without a court order. Courts do not hear emergency custody hearings without good cause.

In cases involving abuse or domestic violence, it helps to file for divorce first to protect your children. Your lawyer can request a restraining order and temporary sole custody to protect you and your children from continued abuse.

Choice of Jurisdiction

If you and your partner live in different jurisdictions, you can decide where to file the divorce papers. Courts in different jurisdictions can have local rules that apply to property division, court proceeds, custody, and support.

Filing in the jurisdiction you live in could offer several benefits. However, an attorney can offer insight into whether filing in your partner’s jurisdiction might give you more advantages. Therefore, a careful analysis regarding jurisdictional requirements and differences should be completed before you file the divorce papers.

Presenting Your Case First

The person who files for divorce presents their case in court first. They can testify and present evidence supporting their demand for spousal support, property division, and child custody. The other spouse is on the defensive and might need to refute the allegations.

Preventing Your Spouse from Selling Off Assets

If your spouse suspects you want a divorce, they might begin selling off assets and concealing property. Filing for divorce first can result in an Automatic Temporary Restraining Order preventing your spouse from transferring or disposing of assets.

Disadvantages of Filing for Divorce First in Beverly Hills

There could be reasons to wait until the other person files for divorce. First, you pay more fees to file for divorce first. The person initiating the divorce case must pay the filing fee to the court. Depending on the county of filing, there could be additional fees the filing spouse must pay.

Additionally, filing first could give away portions of your strategy. You include your demands in your divorce petition. Therefore, your spouse will know what you want from the divorce.

Furthermore, at court hearings, you present your case first. While that could have some advantages, it also has disadvantages. It gives your spouse and their lawyer time to adjust their presentation and strategy.

Residency Requirements for Obtaining a Divorce in California

Before filing divorce papers, you must meet the residency requirements in California Family Code §2320. There are two types of residency requirements for a California divorce:

  • State residency requirement – You or your spouse must be a state resident for a minimum of six months before filing a petition for dissolution of marriage; and
  • Local residency requirement – You or your spouse must be a resident of the county in which you file for divorce for a minimum of three months before filing the petition for dissolution of marriage.

An exception exists for same-sex couples. You can file for divorce if you were married in California but live in a state that does not allow divorces for same-sex couples. Contact a Beverly Hills divorce attorney for more information about divorces for same-sex couples.

As discussed above, choosing the jurisdiction for the divorce case can significantly impact your case’s outcome. A family law attorney can review the different types of divorce and alternatives to divorce litigation during a free case evaluation.

Contact a Beverly Hills Divorce Lawyer Today

If you’re going through a divorce, you need a strong team on your side fighting for your rights. Call Berenji & Associates today to know how we can assist you.

Beverly Hills Office
9595 Wilshire Blvd Ste 959
Beverly Hills CA 90212
(310) 271-6290

Los Angeles Office
550 S. Hill Street STE 1467
Los Angeles, CA 90013
(213) 985-3007