Does it Matter Who Files First for Divorce?
Divorce is rarely easy. There is a lot to consider when it comes to divorce, including dividing assets, determining custody arrangements of children, and managing the emotional toll of the dissolution of your marriage. One common question we frequently get asked is “Does it matter who files for divorce first?”.
The short answer is yes – it can matter, but it is unlikely to have a substantial impact on the ultimate proceeding. While New York is a “no-fault” divorce state, meaning neither spouse needs to prove wrongdoing to file, being the first to file can be a strategic move and carry psychological advantages. That being said, filing first does come with responsibilities and potential drawbacks.
If you’re contemplating divorce in New York, understanding how filing first can impact your case may help you make better, more informed decisions about the road ahead.
What it Means to Be the “First to File” for Divorce
In New York, filing first means you are the “Plaintiff” in the divorce. You initiate the legal process by submitting a divorce petition (also known as a “Summons with Notice” or “Summons and Complaint”) to the appropriate supreme court in New York. The other spouse therefore becomes the “Defendant” and will be served with these documents.
While this doesn’t determine the outcome of the divorce, it does establish the procedural tone of the case – and can provide certain legal advantages that we’ll explore in detail below.
Key Advantages of Filing For Divorce First in New York
Control over Jurisdiction and Timing
One of the most significant advantages of filing first is the control over the timing and location of the proceedings. Being the first to file means that if you and your spouse now live in different counties, you can choose the jurisdiction by selecting the county in which you file. This can help you by considering the different court’s backlog and the convenience of which Court is closer to you.
In New York, you must meet residency requirements to file for divorce. However, if you and your spouse are both living in different counties in New York and meet the jurisdictional requirements, you may be able to file in either county. This can have an impact on court schedules, judge familiarity, and even how the law is interpreted by the judge.
Setting the Tone and Agenda
Filing first allows you to frame the narrative of the initial proceedings. Your filing lays out your version of the facts and requests for the relief you are seeking, such as property division, custody, or spousal support. While your spouse will have the opportunity to respond, the initial complaint often becomes the road map for the proceedings.
This can be especially important in high-conflict divorces, or where there are allegations of abuse, financial misconduct, or contested custody issues. By initiating the process, you get a head start in outlining your position.
An Opportunity to Prepare Strategically
Filing first often reflects that you’ve taken the time to prepare emotionally, legally, and financially. This gives you a leg up in gathering the necessary documents, consulting with a qualified divorce attorney, and considering your long-term goals.
Your spouse, as the respondent, may be caught off guard and scrambling to respond, which can give you a psychological and tactical advantage in the early stages.
Temporary Orders
Filing first also opens the door for temporary relief from the court. This can include temporary spousal support, temporary custody schedules, temporary orders of protection, and maintenance of health insurance provided by your spouse. These temporary orders can shape the “status quo” during the divorce process and may influence the final outcome, especially when it comes to parenting and living arrangements. In some cases, one spouse controls the family finances and keeps the other side completely in the dark. During divorce, this can create an imbalance in power. If financial records are missing, incomplete, or intentionally destroyed, a forensic expert can reconstruct data using secondary sources such as receipts, credit card statements, and third-party records. This reconstruction helps ensure transparency and prevents one party from taking advantage of the other’s lack of financial knowledge.
Some Considerations of Filing For Divorce First in New York
While there are some perceived advantages to filing first, there are also some things to keep in mind when considering filing for a divorce first.
Legal Costs and Obligations
As the filing spouse, you will have the initial burden of paying the court’s filing fees and serving the divorce papers. In New York, filing a Summons or Summons with Notice can cost $210.00, and an additional $95.00 if a Complaint is subsequently filed. You may also be liable for legal service fees, hiring a process server, and responding to any counterclaims your spouse may raise in response.
No Guarantee of A Favorable Outcome
Filing first does not guarantee you’ll get more favorable terms in the divorce. New York is an equitable distribution state, which means that marital property is divided farily, but not necessarily equally. The court will consider many factors when dividing assets and awarding custody, regardless of who initiated the divorce.
Keep in mind that judges are there to ensure fairness. Your status as the plaintiff is unlikely to have any bearing on swaying their decision in your favor.
Risk of Escalating Tensions
In some cases, filing first can escalate conflict, especially if your spouse was unaware that you were pursuing a divorce. This can make the process much more adversarial and increase the emotional and subsequent financial toll on both parties. This is particularly true when children are involved.
Does Filing First Affect Custody in New York?
New York courts prioritize the best interests of the child in custody and visitation decisions. While being the first to file can allow you to paint your narrative and present a proposed custody plan and obtain temporary orders, it does not create a legal advantage in determining final custody arrangements.
As we have discussed at length in various blogs, the factors that matter most in a court’s custody determination are the child’s relationship with each parent; each parent’s history of caregiving to the child; the stability of each parent’s home environment; and each parent’s willingness to support the other parent’s relationship with the child.
Filing first may help to establish a consistent parenting routine during the case, but it won’t override the court’s commitment to making child-centered decisions for custody determinations.
Strategic Questions to Ask Before Filing First
Before you make the decision to file for divorce, it can be helpful to reflect on the following questions with your attorney:
- Am I prepared with the necessary financial and legal documentation?
- Do I need to seek temporary court orders for support or custody?
- Do I anticipate a high-conflict process? Or am I more likely to be able to get this done amicably?
- Is my spouse likely to retaliate or escalate if I file first?
Taking the time to answer these questions will help you approach your divorce with clarity, strategy, and confidence.
What Happens After I File?
Once you file, your spouse will need to be served with the divorce papers within a specified amount of time. After being served, they will then need to submit an Answer to your divorce action. The actual time given for them to respond will depend on your jurisdiction.
If your divorce is uncontested, after the initial documents are filed by both parties, you will likely not have any initial court appearances but instead will immediately engage in settlement negotiations or mediation. If your divorce is filed as contested, the process may involve some initial court conferences. It may also involve discovery and financial disclosure, which will be determined by a calendar set with the court. In the event that you and your spouse cannot come to any agreement, your divorce will proceed to a trial.
Remember that being the first to file does not mean that you control the process. It only allows you to have control over when the divorce is started, and what the initial narrative of your divorce is, as set forth in your complaint.
We're Here For You
Filing for divorce is a major decision that should not be rushed. While being the first to file in New York can offer several perceived advantages, including strategic positioning, preparedness, and control over jurisdiction (in the event that you and your spouse live in different counties), it also carries responsibilities and considerations.
The most important step is consulting with an experienced New York divorce attorney who can evaluate your unique circumstances, help you plan, and advise you on the best course of action. Whether you ultimately decide to file first or wait, having legal counsel on your side ensures that your rights are protected and your goals are prioritized throughout the process.
If you are considering filing for a divorce, don’t go it alone. Call us today at 914.615.9058, or submit our web-form, to schedule your initial, custom-tailored consultation with one of our experts in New York divorce law. Our office has over a decade of experience representing individuals facing a divorce. At Douglas Family Law Group, PLLC, we fight for what’s most important to YOU in divorce and family law matters.
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