Does it matter who files for divorce first?
The short answer is, typically not (but it can). The person that files for divorce first is named the Petitioner in the lawsuit, while the person that responds to the lawsuit is named the Respondent. However, oftentimes the Respondent will file a counterpetition and can therefore also be named the Counterpetitioner. Being named the Petitioner will not give that person an advantage in the lawsuit simply because they were the first to file. Similarly, being named the Respondent will not give that person a disadvantage simply because they did not file first or did not desire to file at all.
What are the benefits of filing first?
One key benefit of filing first is choosing which court you’d like the case to be heard. The first person to file chooses which county will hear the case. In Texas there can be multiple places where you can file for divorce. The Petitioner or Respondent must have lived in Texas for at least six months and in the county where they are filing for at least 90 days for the court in that county to be the proper place to hear the case. For example, if both the parties have lived in Texas for the past 6 months but they were separated and one party was living in Collin County for the past 90 days while the other party was living in Tarrant County for the past 90 days, the first person to file may bring the case in either Tarrant County or Collin County. Thus, if the first person to file (the Petitioner) chooses to file for divorce where they live in Collin County, a disadvantage for the responding party (the Respondent) would be that they have to travel from where they live in Tarrant County to Collin County for any court appearances. This choice of which county to file in, also known as venue, can allow the Petitioner to choose the county they believe will be more sympathetic to their case.
Further, the Petitioner will choose to allege either a fault or no-fault divorce in their original petition when they initially file for divorce. While no-fault divorces are the most common in Texas, a fault-based divorce can require the Respondent to bring forth additional evidence to defend the fault-based claims. A fault-based divorce in Texas is one where one spouse alleges that the other spouse’s misconduct caused the breakdown of the marriage. The Texas Family Code specifies several grounds for a fault-based divorce, including cruelty, adultery, felony conviction, and abandonment. In a fault-based divorce, the court may consider the fault of one spouse when dividing the community property. This means that the court may award a greater share of the marital estate to the spouse who is not at fault. As always, the court will hear all arguments and has the discretion to award the marital estate as it sees fit. Thus, if the Respondent responds to the lawsuit with a counterpetition or even with a general denial and presents evidence rebutting the fault-based claims, the court may choose not to divide the marital estate with the fault-based claims in mind.
So…what’s the true advantage of filing first?
The only actual advantage of being the first to file is getting to determine which county will hear the lawsuit, as long as the county has proper jurisdiction to hear the case. Any other strategic moves of filing first, such as getting your side of the story out first and/or setting the stage for the lawsuit can and most likely will be rebutted by the Respondent when they respond to the lawsuit. Don’t stress if the opposing party filed before you had the chance to – it really won’t have a great impact on the outcome of your case.
Need a family law attorney that can help you file or respond to a divorce case?
The attorneys at Grinke Stewart Family Law are here to help you. Contact us at (469) 598-2001.
