If you are considering a separation from your spouse, you are likely full of questions. A divorce proceeding can bring anxiety and confusion involving custody and the division of property, among other things. One of the most common questions people have about divorce is, “does it matter who files first?” The answer to this question varies from state to state, and California laws set certain guidelines for divorce proceedings.
How Divorce Filings Work in California
The courts call the person who initiates the divorce proceeding the “petitioner.” If a divorce proceeding makes it to trial, the petitioner makes his or her case first. However, there are usually many hearings between the initial filing and a trial – this process can take up to a year or more. In addition, these hearings can involve “Request for Order,” or RFO motions, which provide temporary arrangements for child support, spousal support, and other forms of financial recourse. While the party filing an RFO gets to present his or her case first in these hearings, there is no advantage to being the petitioner or the respondent in a RFO or divorce case.
As a “no-fault” divorce state in divorce, California courts don’t look favorably or unfavorably at who files the motion. However, there are certain instances in which filing for divorce could protect your best interests and those of your family.
Residence in Different Jurisdictions
If you and your spouse live in different states or jurisdictions, the petitioner may have an upper hand. The party who files for divorce will have the benefit of litigation in accordance with the rules of that state. In addition, it’s hugely beneficial to present your evidence in a court close to home rather than having to travel for each hearing.
Lastly, you want an attorney who you can meet in person to discuss the specifics of your case. If you’re the respondent to a divorce proceeding, you may have to travel to meet with your attorneys or conduct most of your correspondence over the phone. This is not only costly but presents a significant emotional burden to the respondent.
Danger to Assets
In some divorce cases, time matters. Spitefully selling off assets, emptying bank accounts, and divesting a spouse of property – these may seem the things of tabloid fiction, but we do run into these scenarios occasionally. One of the best ways to protect your financial future is to file for divorce before these issues become endangered. Once your attorney serves a petition for divorce, a judge will issue an Automatic Temporary Restraining Order, which prevents either person involved in a divorce proceeding from transferring assets. These orders offer essential protections to spouses who are afraid of the other hiding assets in anticipation of a divorce.
Danger to Self or Children
If you fear for your safety or the well-being of your children or other dependents, then you should file for divorce. You can do this without fear – the law offers certain protections to victims of domestic abuse. A family law attorney can assist you with filing for divorce and attaining personal protection orders.
Filing for divorce is never easy, even if you feel your marriage is over or that staying in a relationship is a threat to your safety, but divorce exists to help people in complicated partnerships. Whether you decide to file or your spouse has initiated the proceedings, meeting with an attorney as soon as you are able is an important step. To protecting your own interests, your children, or your financial future, it makes sense to be the petitioner and file for divorce first.
If you have questions about filing for divorce, contact a qualified and experienced Orange County divorce attorney.
