The spouse to file first for divorce can be overwhelmed. Here’s everything you need to know about filing for divorce first in California.
In a legal sense, there are few obvious benefits of filing for divorce first, due to the fact that California is a no-fault divorce state. Even so, there are many logistical factors to consider that may influence a spouse’s decision to file first and declare themself as a petitioner.
Timing: Are There Legal Benefits to File First For Divorce?
Many citizens contemplating divorce wonder if there are benefits to being the first to file for a divorce before their spouse gets the chance. Some may assume that doing so will allow them more control throughout the proceeding, but others might fear being viewed as the “bad guy” in the eyes of the court.
In the state of California, the first person to file for a divorce is known as the petitioner. In the event that the case goes to court, the petitioner will present their case first. During the time between the initial filing and the court hearing, a party may request a “Request for Order” (RFO) to obtain spousal support, child support, attorney fees, or any type of temporary financial relief.
The party requesting the RFO would present their case first, regardless of who petitioned the divorce.
Therefore, spouses who file for divorce first in California receive no distinct legal benefits. Because California is a no-fault divorce state, the legal system does not consider who files first.
Factors to Consider If You Wish to File First for Divorce
Although there are no clear legal advantages to filing for divorce first, there are a few logistical reasons why filing first may be more convenient:
You can determine the litigation location.
If a separated couple lives in different states, the divorce case will be litigated in the city of whichever spouse filed first, making plans for flights, hotels, and travel accommodations much more inconvenient for the responding spouse. Filing for divorce first can help relieve these responsibilities by ensuring court proceedings take place close to home.
You can ensure your assets are protected.
Spouses have emptied their partner’s bank accounts and sold off their assets during the divorce process. To prevent events like this from occurring, a party can choose to file first so their attorney can aggressively protect assets from being moved into different accounts. Once a petitioner files, Automatic Temporary Restraining Orders may be placed on all assets, blocking the other party’s ability to control any accounts or belongings.
You can emotionally prepare and plan for the process.
As a petitioner, a spouse has the opportunity to mentally prepare for the divorce process, gather financial documents, and meet with different family lawyers. After the divorce is filed, the responding party has only 30 days to serve their response to the petition, which could be stressful. Filing first can prevent this potential stress.
Reasons Not to File First for Divorce
In most cases, filing first for divorce is advantageous for spouses in order to get a head start on the process. However, petitioning the divorce may not be advantageous, depending on one’s situation:
1. You are responsible for paying the Initial Filing Fees.
The spouse filing the initial petition for divorce must pay the initial filing fee to the court in order to get the process started., which may be a financial burden. The responding spouse can avoid paying any fees by reaching a Full Marital Settlement Agreement.
Related: How to File for Divorce in California
2. You may ruin any chance of rectifying the relationship with your spouse.
If a spouse has any hope of reconciliation with their partner, being the first to file for divorce would not be a logical choice. Divorces can be emotionally taxing and can lead to ill feelings towards one’s partner (although not always). With this in mind, it is important to deeply consider whether filing for divorce is the right decision, especially if a spouse still has the hope to fix the relationship.
FAQs About Who Can File For Divorce First in California
What does “no-fault state” mean? How does California differ from fault-based states?
A “no-fault state” does not consider faults in a relationship when processing a divorce in court. Faults can include affairs, receiving felony convictions, financial illiteracy, etc. Since California does not consider fault in divorce, which spouse caused the relationship split does not matter, and the petitioner is not seen as a “victim.” Rather, each spouse is treated equally in the eyes of the law.
Related: California No-Fault Divorce: What You Need to Know
After the initial filing, how long does a typical California divorce procedure take?
In California, uncontested divorce procedures take approximately 6 months from the date of the initial divorce petition. Many cases take much longer, but the minimum time frame is 6 months.
Related: How Long Does It Take to Get a Divorce in California?
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