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Does it matter who files first in a divorce?

Many people are under the impression that filing first in a divorce will give you an advantage over your spouse. This is generally not true, but there are some reasons a person should consider when pushing to be the first to file for a divorce.

The first person to file a divorce in the state of Texas is known as the Petitioner. The opposing party is known as the respondent. This Petitioner's name will be stated first in the case style on all pleadings filed in the case and will be the first party to present their arguments at any hearings or trial.

Being the party to file the initial suit means the Petitioner can decide what county to file in. If both parties are residents of different counties, it may matter to a person they file in the county where they currently reside. This can be for many reasons, a big one being convenience. Especially for parties that are domiciled out-of-state, it can be urgent that you file your suit first. This would ease you from having the inconvenience of having to travel and instead require the other party to travel to the county where you have filed the suit.

Of course, this does not give the Petitioner any county as an option as they must meet the residency requirements to be able to file in any county. For example, to file within Harris County, a person must be (1) domiciled in the State of Texas for at least six months, and more specifically, (2) have resided in Harris County for at least 90 days before filing a divorce petition. Only one party needs to meet these requirements, meaning that even if you do not meet these requirements, you can still file within that county if your spouse does.

However, a court would still need to exercise personal jurisdiction over a respondent if the Petitioner meets the residency requirements. This means they will need to have the authority to require the out-of-state party to subject themselves to the laws of the state and court. Stated, personal jurisdiction is the court's power over the parties to a lawsuit. Personal jurisdiction is typically granted to a court over an out-of-state respondent through a long-arm statute. The two main types of long-arm laws about divorce will be divorce jurisdiction and parent-child jurisdiction if children are involved in the marriage. All laws in relation can be found within the Texas Family Code, Section 6.305.

Another thing to consider when filing first is that the Petitioner is responsible for paying the initial filing fee. This fee can range anywhere from $300 to $400 depending on what county the lawsuit is filed and the children involved. As a respondent, the only pleading required would be an answer that is mainly free but can cost a few dollars at most. If you want to countersue the Petitioner for divorce, the respondent would need to file a counterpetition which can range from $50 to $100. In short, the initial filing will incur more costs. This also does not include the fees a petitioner will have to bear by requesting a citation and hiring a process server to serve the respondent. This, too, can be costly, especially if the respondent's whereabouts are unknown. These fees are something a person should keep in mind if they insist on filing first in a divorce.

A petitioner can have the upper hand in a divorce because they can set the tone of the divorce. This means they will have to decide whether to plead fault or no fault in the original petition. However, pleadings can be amended and changed by either party after the initial filing. Most people, however, will aim for an amicable divorce where no fault has been pleaded, but they can always amend later if they want to include any at-fault grounds for the divorce.

Along with the original divorce petition, it is not uncommon for a petitioner to file a request for temporary orders along with the petition. They are often requested in the initial pleading, and their purpose is to put restrictions on how the parties should behave during the divorce proceeding. These can include visitation rights, conservatorship of the children, child support, who will have access to the marital home, bills, etc. A petitioner can have the advantage here because they will have more time to prepare for the hearing versus the respondent. A petitioner can also ask for a Temporary Restraining Order (TRO), which can help prevent the other party from hiding assets. A TRO is binding on your spouse and can help deter these behaviors. A petitioner has the advantage of preparing for both a temporary order hearing and a temporary restraining order.

Most family and divorce law cases will not make it to trial; most cases will settle in mediation before the case goes to trial. While it is the most cost-efficient method to settle outside of court, a small percentage of cases end up in a trial. If you are a petitioner in a case, this can significantly impact what trial strategy is used. A petitioner gets to present their case before the judge first, to which a respondent will have to counter-argue and put on their case second.

If you cannot file first in a divorce proceeding, a person should not worry too much because you will still be able to present your case in the divorce process fully. You have the right to counterpetition and present your arguments before the court. However, if you are persistent in filing first, you should consider the advantages you will be entitled to in preparing your case against the respondent. Also, you should be aware of the cost you will incur with the initial process of filing and service of process.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding divorce, it's essential to speak with one of our Houston, TX, Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC, handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.

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