Does it Matter who Files First in a Texas Divorce?

Many of my potential clients are concerned with filing first in their divorce case. Many of them have the impression that if they are not the first to file they will be at a disadvantage in their case. However that is generally not the case when both spouses are represented by divorce lawyers. As a Houston Divorce Lawyer, I will discuss what importance filing first has in a Texas Divorce Case.

The Petitioner in a Divorce Case

The first to file in a Texas Divorce is known as the Petitioner. Here are the ways in which being the Petitioner matter:

Choosing Which County to File In

In most divorce cases there is not an option on where to file a divorce. However, in some situations, there may be a choice. A divorce may be filed in the county where either spouse is a resident as long as residence requirements have been met. If the spouses live in different county’s there may be a choice on where to file.

In such as case the spouses may want to rush to file for divorce first in order to ensure the courthouse in which the divorce is filed will be geographically convenient to them. I have had cases in which my clients were saved considerable time and money by filing first.

This was because their ex was either having to drive 4 hours every time there was a court hearing or flying from out of state.

Payment of Initial Filing Fee

The spouse who files first (The Petitioner) also pays the initial filing fee. Generally, the initial filing fee is $300 to $400.

The other spouse (respondent) can file their response an answer which is free to a few dollar. The responding spouse can also countersue for divorce by filing a counterpetition for divorce this counterpetition is $50-$100. Either way the spouse who files generally pays more in filing fees.

Setting the Tone of the Divorce

Whoever files first sets the tone of the divorce by deciding whether to plead fault or no fault in the divorce. However, this can change, because pleadings can be amended and changed by either party.

Many, times clients have fault grounds but want to try and resolves things amicably at least at first. So often times we will see if we can resolve things in mediation. If we are unable to we will reevaluate afterwards whether to amend the pleadings and plead for fault.

Going First at Trial or other Hearings

If the divorce case ends up in a trial the Petitioner will get to go first in the courtroom. Most divorce and family law cases do not go to trial, this procedural fact can have an impact on trial strategy.

However, it is not uncommon for a case to have a Temporary Orders hearing and in such a hearing the Petitioner would get to go first.

Timing and Relief Requested

As discussed above Temporary Orders are not uncommon when a person files for divorce, that person can request a Temporary Orders Hearing in the Original Petition for Divorce. The purpose of the Temporary Orders is to put some orders in place on how the parties will behave during the divorce.

The Judge is going to make orders that will remain in place during the divorce. These orders will include will say what visitation will be with the children, conservatorship of the children, child support, who gets to remain in the marital residence while the divorce is going on, temporary spousal support, and who will be responsible for certain bills.

By filing for divorce first this may give you an advantage when comes to issues at the Temporary Orders hearing. This is because you and your divorce attorney will likely have more time to prepare for this hearing than your spouse will have.

Help Prevent Assets from being Hid

Before a divorce is filed there are no orders saying what you or your spouse can do. When you file first this may also prevent your spouse from hiding assets. This is because when you file first you can ask for a Temporary Restraining Order (TRO) an order that prohibits this type of behavior.

The TRO is binding on your spouse and may help prevent against this type of underhanded behavior.

What if you are unable to file first?

If you are unable to file first, you should not worry. As a responding spouse you can still participate the divorce process. You will have opportunity to file an answer and counterpetitioner with the Court.

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