Puja Sachdev | April 17, 2023 | Divorce
Does it matter who files for divorce first in San Diego? Is it better to file for divorce first or respond to California’s divorce papers?
These are two common questions our San Diego divorce lawyers answer when people call our office for divorce advice. Typically, they are concerned that if they do not file for divorce first, they will be at a disadvantage.
Importantly, California is a no-fault state for divorce actions. Neither spouse needs to prove the other spouse is guilty of wrongdoing or “fault” to obtain a divorce. It only takes one spouse to claim the marriage is irretrievably broken for the court to grant the divorce.
Furthermore, the person who files for divorce pays the court filing fee. They also pay to serve the divorce papers on their spouse. As a result, the person who files for divorce first might pay more money out of pocket, at least initially.
If your case goes to trial, you present your evidence first. Your spouse and their attorney could adjust their response based on how you present your case.
With that said, there are advantages to being the first one to file for a San Diego divorce. The best way to know if these advantages outweigh the potential disadvantages is to discuss your situation with a San Diego divorce lawyer.
Advantages of Filing a San Diego Divorce First
Benefits of being the first spouse to file divorce papers in San Diego include, but are not limited to:
Choosing the Jurisdiction for the Divorce Case
California’s residency requirement for divorces requires that at least one spouse is a state resident for six months before filing a petition for dissolution of marriage. The law also requires one or both spouses to be county residents for three months in the county where the divorce papers are filed.
Therefore, if you and your spouse live in different jurisdictions, filing first lets you choose where to file the divorce papers. There could be some advantages of filing for divorce in one county versus another. An attorney can analyze both jurisdictions to determine what strategy to use in your case.
Maintaining the Status Quo of Children
Divorce can be difficult for children. Therefore, maintaining a stable environment is essential. Filing divorce first could help you remain in the home with the children to maintain the children’s routine.
If you allege domestic violence, being the first to file divorce papers can help protect you and your children. You can request the court issue an order of protection and temporary sole custody of your children pending a full hearing.
Preventing a Spouse from Selling or Concealing Assets
Suppose you fear your spouse might try to liquidate or hide assets when you file for divorce. In that case, you can ask the court for an Automatic Temporary Restraining Order to prevent both spouses from disposing or transferring assets. The restraining order gives you time to hire a forensic accountant and investigators to assist with issues related to property division if needed.
Prepare for the Divorce
Depending on your situation, you might need to make preparations in advance of a divorce action. Timing the divorce filing allows you to make living arrangements, find employment, obtain credit in your name, and other steps to help you transition into single life. Your divorce lawyer can help you develop a strategy that gives you the best chance of obtaining your desired outcome.
Presenting Your Case at Trial
If you file for divorce first, you are the petitioner, and your spouse is the respondent. The petitioner presents their case at trial first.
Being the first one to present evidence can be an advantage. You are the first to explain to the court why you want the court to rule in your favor. This strategy could put your spouse on the defensive and require them to spend much of their time refuting your allegations and evidence.
Other Considerations When Filing for Divorce in San Diego
Instead of filing for a regular divorce, some spouses might benefit from going through divorce mediation to resolve their differences. If you are considering a divorce, you will benefit from talking with a San Diego family law attorney sooner than later. Understanding your legal rights is the best way to protect yourself and your children.
Contact Our Divorce Law Firm in San Diego, CA
San Diego Divorce Lawyers, APC
2851 Camino del Rio S #430
San Diego, CA 92108