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Do I Need to File for Divorce Before My Spouse Does?

The judicial process of obtaining a divorce, modification or legitimation can be intimidating and confusing for those who have never gone through it before. All of our clients come into our office familiar with the role of the plaintiff and defendant in this process. However, amongst some there is a perception that the party who files first has an advantage. While the role of the plaintiff and defendant in a civil action does have an effect on some aspects of the legal process, it does not give one party a particular advantage over the other. This is because each party will have an opportunity to present their case to the court.

While the position of plaintiff and defendant in a divorce action doesn’t give either party an advantage with the court, each side has a benefit depending on strategy.

Advantages of Filing First:

  • The party that files the divorce first gets the opportunity to pick the most convenient time to initiate the action. Also, because they have been researching attorneys to handle their case, they will have first choice as to their representation. Another consideration is that the plaintiff is the first to present evidence and arguments in the case. To some, there is a perceived benefit to having an opportunity to frame the issues for the court. Lastly, if there is a concern that a spouse may hide assets, filing a petition invokes the court’s standing order preventing the other party from disposing, hiding or selling off marital assets.

Advantages of Waiting for the Other Party to File

  • On the other hand, some parties prefer the opportunity to respond to the plaintiff/petitioner in the proceedings. This gives the defendant an opportunity to respond with counterclaims and rebut claims made by the plaintiff in the petition. For instance, if the plaintiff files for a divorce based on the marriage being irretrievably broken the defendant can respond with a fault-based allegation such as adultery. If proven, the counterclaim for adultery may give the defendant an advantage during the court’s consideration of the evidence. Lastly, filing a divorce like any other civil action requires a filing fee as well as cost associated with serving the petition.

Regardless of who initiates the divorce action the court will weigh the evidence objectively. Each side will have an opportunity to obtain discovery, present evidence and argue their position to the court. Attorneys at the Faucette Law Firm, LLC have experience representing petitioners and respondents in divorce, modifications, legitimations, child support and child custody actions. Our law firm will advise you of all your options and guide you through the legal process. We serve Atlanta, Fulton, Douglas, DeKalb, Cobb, Gwinnett, Clayton, Henry, Carroll and Coweta. Contact our law firm today for consultation.

 

 

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