Does It Matter Who Files for Divorce First?

Some couples, after they know they want a divorce, race each other to the courthouse to be the first to file the divorce petition. For a traditional divorce, there are advantages to filing before your spouse. If you are working together in the collaborative divorce process, it generally will not make any difference.

The Traditional Divorce Process: Benefits to Filing First

If your spouse lives in the same state you do and in the same county, it will not make much difference in which of you files first. If your spouse lives in a different county or state, there are quite a few reasons why you should try to file first.

When You Both Live in Texas

When you both live in the same county. Even if you live in the same county, the one who files first may have the advantage of setting deadline dates for discovery and court hearings. Even then, the dates can be changed upon request by your spouse.

When you and your spouse live in different counties. Generally, court hearings are held in the county where the petition is filed. If you file first, and your spouse lives in a different county, your spouse is the one who will have to travel to court hearings.

Advantages of Filing First When Your Spouse Lives in a Different State

The law of the state where the petition is filed is controlling. If your spouse files first and does not live in Texas, you will be subject to the law of the state where the petition was filed. This can make a difference in property division and even in child custody.

• Property division. Texas is a community property state, which means all the property you accumulated together during your marriage belongs equally to you both and should be divided accordingly. If your spouse files first in a state that is an equitable division state, you may not receive half of the property, but the court has the option of dividing property in a manner it deems equitable—which does not mean equal.
• Child custody. In Texas, the court will consider the custody preference of a child over the age of 12. In other states, the age may be older and give discretion to the court to hear children who are younger. This can be significant.
• Spousal maintenance. Laws concerning spousal maintenance vary with jurisdiction. This can make a difference in who files first when you live in a different state than your spouse.

Attorney Daniel Abasolo at Springer & Lyle can help you answer questions regarding divorce. He can help you make decisions that are best for your family. Contact us at 940.387.0404 to schedule your divorce consultation with Mr. Abasolo.