Does it Matter Who Files for Divorce?

Does it Matter Who Files for Divorce?

June 29, 2021

Nobody knows a marriage like the two people inside it. They may look rapturously happy but be miserably unhappy in their daily living. Sometimes in that situation, it may feel easier to stay in the marriage and wait for the other to file. Maybe things will get better. But, there can be serious consequences on waiting on the other partner to file.

It Matters Who Files First

It does matter who files first. There are significant financial and legal advantages to going first. These will likely outweigh any thoughts you have about hoping for potential reconciliation.

Financial advantages to being first to file

Being the first to file allows you to make certain financial arrangements that can be a bit more challenging if you are filed against – especially if you weren’t expecting it. Some of the financial prep work can include:

  • Getting your legal and financial professionals in place
  • Securing all your financial documents and records in hand and in order
  • Setting aside, if necessary, funds to cover the expenses involved
  • Establishing your own credit if you don’t already have it
  • Preventing the other side from hiding assets

There will be legal rules surrounding what you and your spouse can do financially while the divorce is pending. You will want to get as much done as possible before you file or are filed against so you can anticipate those rules.

Legal Advantages To Being First To File

Perhaps most importantly, filing first gives you the chance to control most of what can and should be structured in your favor – or not – in a divorce proceeding. For example, the first to file gets to choose the jurisdiction where the case is heard. This may not seem all that critical, but there are significant issues that can arise out of where a case is heard. 

Divorce law is state law, so the state where the case is heard can control lots of vital issues, such as community property decisions, custody and child support rules, and even access to alimony. Even more crucial is that the grounds for divorce are also different in the various states. No-fault versus fault-based divorce law can materially impact the outcome. 

Filing First Means You Set The Stage

When you file for divorce, you have to state grounds for it, that is, what are the legal reasons for seeking the divorce. This is another place where state law will decide what grounds are available to you. In no-fault states, irreconcilable differences or incompatibility will generally be sufficient grounds, or in some no-fault states, even having lived apart for a specified period. No-fault divorce is now available in all fifty states. 

Grounds in fault states vary considerably from state to state but usually include grounds such as:

  • Physical or mental cruelty
  • Imprisonment
  • Desertion
  • Adultery
  • Habitual drunkenness
  • Drug usage
  • Incurable insanity
  • Impotency or physical incapacity

Not all of these grounds are available in every state, and you will want to consider working with legal counsel for your divorce to be sure that your grounds and evidence are in good order for your state. 

Contact an Indiana Divorce Attorney for Guidance Right Away

If you are considering filing for divorce, do not wait to discuss all of your options with Indiana divorce attorney Robert Bellinger at The Bellinger Law Office. We work with clients in all different situations, and we can help whether or not you are the first one to file. Contact us today for more information. 

Guidance for Families


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Robert H. Bellinger



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