Does it Matter Who Files for Divorce First?

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Going through a divorce is often difficult emotionally and complicated to navigate. The spouse who files for divorce first is known as the petitioner. Some jurisdictions in New York allow both spouses to file jointly, meaning there is no petitioner, but some may wonder if the petitioner gets any special treatment because they were the first to file. New York courts treat both parties as equals during a divorce, however, if one person decides to file first they will receive some general benefits and advantages. Keep reading and contact a skilled Bohemia, NY divorce attorney for further assistance.

Is New York a Fault State for Divorce?

A person can generally file for two types of divorce, called a no-fault or fault-based divorce. Every state recognizes no-fault divorce while some allow a couple to choose either one. New York is one of these mixed states.

No-fault divorce can be filed by anyone when a marriage simply is not working out but it is not due to one or both spouse’s actions or behavior. You can file for a no-fault divorce because of incompatibility or that the marriage is irreparably broken.

In a fault-based divorce, one person is filing because of something the other spouse did. A person may file for a fault-based divorce if their spouse committed adultery, is abusive, abandoned them, and more.

Fault-based divorces will go to court and no-fault divorces may sometimes go to court depending on the circumstances of the situation. Which one you choose will depend on your relationship.

Does Filing First Give You an Advantage?

While a court will treat either party equally during divorce proceedings, there may be certain advantages to being the first to file. The following are ways in which it may be beneficial to file first.

  • Preparation: Divorces are emotional and intense. Being the first to file means you are likely better prepared emotionally and financially to go through the proceedings. Filing first means you aren’t caught off guard and have had time to fully prepare and process your emotions and mental state. Additionally, you can prepare relevant information in advance like financial statements, housing statements, child custody plans, and other paperwork.
  • Jurisdiction: By being the first to file for divorce you may be able to have some control over where the divorce hearing takes place. You can choose the state and county where you want to file as long as you meet residency requirements.
  • Hiring professionals: If you are filing for divorce you will want to hire a team of professionals to assist you in the process and ensure that you are prepared and that your rights are being respected. You may wish to acquire the services of an attorney, financial or economic advisor, or mental health professional.
  • Presenting evidence: The petitioner will present their case first in the event of litigation. This could be a benefit to some because they have the opportunity to share their side of the situation and present their evidence to the judge first.

Being the first to file won’t immediately ensure that you get everything you want during your divorce. However, being well prepared is a luxury that is usually only afforded to the filing spouse.

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