Does it make any difference who files first for divorce?
Well yes and no: it all depends.
Here are several situations where it can definitely make a difference.
Let’s say you and your ex are separated geographically by several hundred or thousand kilometres.
If your ex decides to commence a court action at a court registry close to where he resides it means that all of the necessary court hearings and related proceedings will need to be heard at that court registry. In the event your attendance is required you or your counsel will need to be present, causing you maximum inconvenience.
Also, if you decide you may need legal representation then it makes practical sense to retain counsel located nearby to the court registry, after all you don’t want to be paying your counsel major travel time to attend court. In addition a local lawyer is more attuned to the local judges and any other counsel retained by your ex, which can be a huge plus.
Unfortunately however, retaining far away counsel makes it much more challenging to actually maintain any kind of face to face communication or to maintain an effective relationship with your counsel.
Of course all of these challenges will not be yours to face if you first decide to commence a court action at a court registry most convenient for you and your counsel.
There’s also another good reason to be first to file.
In a situation where your ex has no incentive to take any constructive steps to resolve differences through good faith negotiations, filing first can send a powerful message that you are serious about finalizing terms, if necessary with the assistance of the courts.
In my experience filing an action first can often motivate and encourage the other side to be more realistic and reasonable in their efforts to reach a mutually agreeable settlement. Otherwise your ex’s (and your) legal costs are bound to increase substantially.
So just what are the no’s to filing first, or filing at all?
Firstly, there are the related court filing and legal fees which you will have to incur. If both you and your ex hold off filing an action the funds that you would have incurred could be more constructively used to negotiate and prepare a Separation Agreement.
I also wanted to pour cold water over another argument made by some lawyers, namely that filing first gives you a advantage at court. It’s argued that a judge is much more inclined to take you seriously and grant what you’re asking for if you are the first to file and present your case.
Not where I’m from!
In my long experience a much more reliable predictor of legal success before any judge is preparation and legal precedent, not which side is first to file or present their case.
Remember, slow and steady can also win this race.
