Does It Matter Who Files First for Divorce

If you are thinking about divorce, you may be wondering if it matters who files first. The short answer? Yes. While many divorces end in settlement and never make it to trial, the decision to file first offers strategic advantages that shouldn’t be overlooked in case you end up there. I’m of the firm belief that if you arrive at a point where your divorce decision is final, be the first one to file. Ultimately, the timing is up to you. Some things to consider include:

• Procedural Advantages
• Perception and Optics
• Psychological Considerations
• When It Doesn’t Matter

Procedural Advantages

Filing first for divorce places you in the role of the plaintiff if you end up litigating. From a procedural standpoint, you then have the opportunity to present your case both first and last to the judge. This is an advantage because it allows you to set the tone and narrative of the case and then reinforce your arguments during closing remarks. I always want to have the first word, and then I want to have the final word.

This assumes that you are going the distance and don’t end up settling out of court. Statistically, the odds are that you are never going to see the inside of that courtroom. If you do, you’ll be glad that you’re the plaintiff, especially if the marriage has significant disputes over finances, child custody, or property division. Regardless of whether you settle or go to trial, being the one to frame the case first can create a favorable starting point for negotiations or courtroom arguments.

Perception and Optics

Filing first can also impact how you’re perceived by others, whether it’s your spouse, the court, or your broader social circle. Being the one who initiates the divorce often conveys a sense of empowerment and control. As opposed to being seen as the spouse who was left behind, you may appear as someone who took proactive steps to move on from an unsalvageable situation. On the flip side, your spouse may find themselves needing to explain why the divorce was initiated, which could work in your favor if public perception matters to you.

Psychological Considerations

For some, filing for divorce can be an empowering act. It signals a decision to take control of your life and your future. It can even be a race to the courthouse to see who files first. However, it is not like that for everyone, even if they know the marriage is over.

I’ve worked with many clients who, for whatever reason, will not file, despite recognizing that divorce is the right choice for them and that filing first might be in their best interest. They just want the other one to do it. Often, this hesitation stems from deeply personal reasons—such as wanting to preserve their children’s perception of them, a respect for the institution of marriage, or simply an unwillingness to be the one to “pull the trigger.” Under the right circumstances, they may even be perfectly content to maintain the status quo.

When It Doesn’t Matter

While filing first has advantages, it’s important to remember that most cases ultimately depend on negotiation and settlement. If both parties approach the divorce with the intention to resolve matters amicably and stick to that mindset throughout the process, it may not matter who initiated the filing. You’ll negotiate a settlement agreement and the court will grant the divorce. Then, it won’t matter who is the plaintiff or the defendant.

Final Word

Deciding whether to file first in divorce is a significant decision that deserves careful consideration. Filing first offers procedural advantages, allows you to shape the narrative, and can empower you to take control of your future. The court is primarily concerned with equitable outcomes, regardless of who files first. That said, being the one to file can offer peace of mind, as it gives you control over the timing and allows you to choose your legal representation and strategy before your spouse has the opportunity to do so.

All things being equal, I like being in an offensive posture more than a defensive posture. However, I understand that filing for divorce can feel like a daunting or symbolic step, and some people struggle with taking that first action. If that resonates with you, I encourage you to reflect on what’s holding you back. Filing first doesn’t guarantee a better outcome, but it often sets the stage for a smoother, more controlled divorce process. If you’re at this crossroads, let’s discuss your situation and determine the best course of action for your needs and goals.