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  • Bruce Steinfeld

Does It Matter Who Files First in a Divorce?

Updated: Mar 29, 2022

The relationship ended a while ago. You suggested a divorce and sitting down to discuss child custody and financial issues, but all that did was lead to another fight that ended with your spouse storming out of the house. Should you wait until your spouse makes a decision? Does it matter who files first in a divorce? The following may be some of the factors to take into consideration and discuss with an Atlanta family law and divorce attorney when making the decision.

Starting a divorce action puts you in control of its timing

A Georgia divorce begins with the attorney for the petitioner filing a petition in court asking it to grant a divorce. The petition, which may be referred to as a complaint, contains information about the parties and the marriage. It also contains details about the grounds you rely upon when asking the court to end the marriage and petitioner?s demands regarding child custody and support, alimony or spousal support, distribution of assets and other issues.

As the spouse filing first for a divorce, have the ability to gather financial records, retain the services of an Atlanta family law attorney, establish bank accounts in your own name and apply for your own credit card that your spouse cannot access. It is much easier to get yourself prepared when you control when to file than being surprised when divorce papers are served on you.

If your spouse files first for divorce, you must respond to the petition within 30 days to avoid being in default. Thirty days may seem like a long time, but it goes by very quickly when you must choose an attorney and gather all of the documents and financial information the lawyer will need to respond to the petition.

Filing first gives you the ability to choose the grounds

As the spouse initiating divorce proceedings, you control the choice of the grounds that apply to your particular circumstance. Grounds upon which a court in Georgia may grant a divorce under include the following:

  • Desertion

  • Adultery

  • Physical or mental cruelty

  • Habitual intoxication or drug addiction

  • Incurable mental illness

Most of the grounds for divorce require that you prove your spouse was at fault in causing the marriage to end. Georgia allows a no-fault ground for divorce based upon the petitioner asserting that the marriage is irretrievably broken without regard to fault on the part of either spouse.

Choosing the grounds for a divorce may give you an emotional edge by putting your spouse on the defensive. It may also offer a tactical advantage in court by allowing your attorney to be the first to present evidence in support of the grounds for the divorce. The petitioner goes first at trial and has the final word by being the last to present evidence in rebuttal to evidence presented by the respondent.

Filing first offers protection against your spouse moving assets

When you wait before initiating divorce proceedings, your spouse may use the time to liquidate bank accounts and transfer assets in order to hide them from you. Filing first for a divorce may catch your spouse off guard.

Once a divorce is filed, Georgia law prohibits either spouse from transferring assets, including removing money from existing bank accounts, without first obtaining a court order to do so. An exception exists that allows the use of funds to pay already existing debts.

Preventing your spouse from limiting your choice of attorney

If you know that a divorce is inevitable, the longer you wait may allow your spouse to limit your ability to be represented by the lawyer of your choice. It may take time to find an experienced divorce attorney you feel confident in retaining to handle your divorce. The last thing you want is to find out that your spouse already retained the attorney you had in mind.

It may not be necessary for your spouse to actually retain a particular attorney to prevent you from using that person for your divorce. Any divorce lawyer your spouse sees in a consultation may have a conflict of interest and be unable to take you on as a client for the divorce.

The best way to avoid such unfair tactics by your spouse is to not delay in scheduling a consultation with an attorney. Consulting with an Atlanta family law and divorce attorney before your spouse has filed for divorce gives you the opportunity to discuss a winning strategy, including deciding whether to be the first to file for divorce.

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