Does It Matter Which Spouse Files for Divorce?

When we sit down with new clients for their initial consultations, one question that frequently comes up is, "Does it matter which spouse files for divorce?" Some people have heard that it is better to let their spouse file first, while others are under the impression that they need to rush to the courthouse in order to protect their legal rights. So, what is the real answer?

The real answer is this: In a typical divorce, filing first only plays a minimal role-and often not enough of a role to factor into your approach to your divorce.

Being the "First to File" Does Not Impact...

First, let's be clear about the issues that are not impacted by which spouse files for divorce. In Ohio, your rights with respect to the following are the same regardless of whether you or your spouse is the one who files for divorce:

  • Property Division - Your "marital property" is still subject to equitable distribution, and your "separate property" is still yours to keep.
  • Child Custody - In custody matters, the Ohio courts always focus on protecting the best interests of the children involved.
  • Child Support - In Ohio, child support is calculated according to a set of statutory guidelines. These guidelines do not take into consideration which spouse filed for divorce.
  • Spousal Support - Divorcing spouses and the Ohio courts have broad discretion in formulating spousal support The spouse who files first does not gain an advantage.
  • Automatic Restraining Orders - The automatic restraining orders that apply during a divorce apply equally to both spouses (and actually apply slightly earlier to the spouse who files for divorce).

Three Ways that Filing First Can Affect Your Divorce

However, there are still a few potential ways in which filing first can affect your divorce. Whether (and to what extent) you should consider these issues is a matter for you to discuss with your attorney:

  • Filing Fees - The spouse who files for divorce will typically incur an additional (modest) filing fee.
  • Where You File - If you and your spouse have separated and are living in different counties or different states, filing first allows you to choose the jurisdiction in which your divorce will take place - at least initially. However, the non-filing spouse can often challenge the filing spouse's choice of jurisdiction (resulting in additional legal fees for both spouses), and choosing a particular jurisdiction for strategic purposes will not always work out to either spouse's advantage.
  • Going First in Court - The spouse who files will be considered the "plaintiff" in the divorce proceedings, and as a result will generally be the first to present his or her side in court. In some circumstances, this can help with framing the issues and setting the tone of the proceedings, which may or may not affect the judge's final determination.

Do Not Confuse Filing for Divorce with Preparing for Divorce

While filing first may ultimately have little impact on your divorce, the importance of preparation cannot be overstated. Whether you intend to assert fault-based grounds or are intended to pursue a "no-fault" divorce, what you do to prepare will almost certainly have a far greater impact on your divorce than who files first. In other words, you should not wait for your spouse to file before you begin gathering information and thinking about the issues that will come up during the process. When it comes to getting divorced, thorough preparation will often be the key to securing a successful outcome.

Speak with a Cleveland, OH Divorce Lawyer at Laubacher & Co.

For more information about what you can do to prepare for a divorce in Ohio, contact Laubacher & Co. for a free, confidential consultation. To speak with an attorney at our offices in Cleveland, OH, call 440-462-1882 or submit a consultation request online today.

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Laubacher & Co.
20525 Center Ridge Road
Suite 626
Rocky River, Ohio 44116

Phone: 440-462-1882
Phone: 440-356-5700
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