You may have heard filing first for divorce gives you an upper hand over your spouse in divorce proceedings. But does it matter who files for divorce first in California, or is it just a myth?
As leading family law experts, we are here to clarify any misconceptions and offer guidance through your divorce. Read on to learn if you should be the first to file.
Does it Matter Who Files for Divorce First in California?
If you file first for divorce in California, most of the advantages that may present are personal rather than legal. Legal-wise, it doesn’t matter who files for divorce first. The reason for this is that California is a no-fault state.
As a no-fault state in California, all you need to do to file for divorce is to say that you and your spouse have “irreconcilable differences.” The court will not favor either party because you do not need to prove your spouse’s fault to get a divorce.
This also includes not favoring the party that files first for a divorce, but the personal advantages may involve:
- Legal and practical considerations
- Financial and custody matters
If you have questions regarding the benefits of being the first one who files for divorce, it is wise to contact an attorney specializing in family law. Our California divorce lawyers are experts with years of experience in divorce and California law and can help guide you through your separation.
Legal and practical considerations
The order in which parties file is irrelevant. The filing of a divorce petition in California cannot benefit either party in regards to the court’s opinion. However, depending on your circumstances, there can be some advantages. In terms of residential aspects, the petitioner may have the upper hand.
Filing for divorce first means you may benefit from a geographic advantage because the case will be heard in your jurisdiction, assuming you live in different counties or states. In terms of practical reasons, it’s hugely beneficial to present your case to a court in your county rather than having to travel for every court hearing.
Financial and custody matters
You may suspect your spouse will move or spend funds, conceal assets, or disappear, or if you fear your child’s safety and well-being, it’s best to file for a divorce first. In that case, you may want to petition first to obtain a temporary court order. A divorce lawyer who specializes in family law could assist you in filing for divorce and issuing a protection order.
The court may issue SFLRO (Standard Family Law Restraining Orders), formerly known as ATROS. These orders go into effect when you serve papers for divorce to your spouse.
The ATROs prohibit either spouse from traveling outside of the children’s home state. The orders also prohibit either party from moving marital funds or altering shared assets.
Filing Divorce Papers: Legal Procedures and Timelines
In general, the shortest period for your divorce to get finalized in California is six months, and the process has the following steps:
- Filing petition for divorce
- Serving the papers to your spouse if you are the petitioner
- The respondent (you or your spouse) files their response; or defaults
- Exchanging financial disclosures and making decisions with respect to alimony, custody, child support, property division, to name a few.
- Finalize the divorce by filing a Judgment.
There maybe several hearings from when you submit the petition for divorce until the divorce is finalized if you cannot agree on any issues. Both you and your spouse will have an equal chance to present your reasons for the terms and orders you would like the court to make.
The court will enter the orders it deems fair, or if you and your spouse have a settlement agreement, it will review and enter it into the final judgment.
Conclusion
Does it matter who files for divorce first in California? As we mentioned, from a legal standpoint, neither you nor your spouse will gain the court’s favor by filing first. The advantages are more personal and regarding shared assets and custody disputes.