Does It Matter Who Files for Divorce First?

When you and your spouse married each other, you likely did not expect the marriage to end in divorce. Unfortunately, the dissolution of marriage is a situation many couples go through, and it can happen for numerous reasons. If you are considering leaving a marriage, you may wonder about a practical question that many ask before hiring a divorce lawyer: Does it matter who files for divorce first?

Our divorce attorneys at Lincoln & Wenk have years of experience helping people in Arizona navigate their divorce proceedings and the legal challenges that may arise. Here, we break down the potential benefits and disadvantages of being a divorce petitioner.

Benefits of Filing for Divorce First

Before answering “Does it matter who files for divorce first?” it is important to note that being the person who files first does not mean the case will automatically work in your favor. In Arizona, it is rare for the courts to determine a case’s final outcome based on who the petitioner is. However, that does not mean that starting the legal filing process does not include some benefits, including the following.

It Can Be Empowering

By filing for divorce first, you may experience an empowering sense of direction that your spouse lacks. It can provide a sense of clarity that helps you stay emotionally grounded; unlike your spouse, you will not have to worry or wonder about what comes next. You will have time to plan and reflect.

Being the petitioner also means you can present your entire case before going to trial. Your spouse, as the respondent, will present their case after you, allowing you to provide rebuttal evidence to the claims they make during the proceedings.

It Allows You To Gather Important Documents

When you file first, you may have more time to collect essential documents to support your case, such as:

• Bank statements
• Tax returns
• Property records
• Debt documentation
• Proof of income

Collecting and organizing marital records and personal documents is a critical step in the dissolution of a marriage because it lays the foundation for your case. The sooner you gather the information, the sooner your legal team can help you prepare. Your team can also use it to identify potential red flags or missing details that could affect your case.

You Have More Time To Build a Support System

Going through a divorce can be stressful, so having a strong support system is often necessary. Being the petitioner means you can prepare emotionally and practically for the process, whether that means finding new housing or having difficult conversations with loved ones. It also gives you time to arrange for childcare, if necessary, or pursue counseling to prepare for the emotional toll that the divorce may put on you.

You May Have Priority Access to Professional Assistance

Thorough planning is essential when ending a marriage, and having a knowledgeable legal team on your side is helpful. As the petitioner, you can arrange for legal counsel before your spouse knows what is happening.

Not all divorce petitions end in actual divorce. Either spouse, or both, can file a petition with the conciliation court before taking the legal steps toward separation, annulment, or divorce to reconcile or amicably settle disputes, according to Arizona Revised Statutes § 25-381.09. When you start this process early with a legal team that aligns with your goals, you and your spouse may be able to resolve issues before they escalate, but keep in mind this will delay things.

It May Determine Where the Case Will Be Heard

Does it matter who files for divorce first if you live separately from your spouse? In many cases, spouses reside in the same county, so disputes over where the case will be heard are not common. However, if spouses live in different areas, the case will be heard in the county where the petitioner first filed.

Filing first may affect venue and timing, although jurisdiction and applicable law can become more complicated when spouses live in different states. It may also work in your advantage if your spouse lives in a different state because differences in divorce laws could influence issues like property division and support.

Potential Downsides of Filing the Divorce Petition First

Despite the potential benefits of filing for divorce first, doing so can create complications in some cases. For instance, as the petitioner, you will likely incur many of the costs associated with filing for divorce, including court filing fees and attorney expenses. These costs may balance out over the course of the divorce proceedings, but that is not always the case.

Filing first may also create tension or emotional distress in your spouse, especially if they feel blindsided by your actions. The stress could make them more confrontational or less likely to negotiate amicably with you. In some cases, the petitioner is considered hostile or aggressive by filing for divorce first, which is a possibility you should prepare for.

How Initiating Divorce Proceedings Can Impact Key Elements of Your Case

Although there are many types of divorce people can file for, in Arizona, many cases involve three specific elements that both parties must address.

Property Division

Does it matter who files for divorce first when it comes to the division of marital assets? Because Arizona is a community property state, marital assets and debts are usually jointly owned and subject to equal division during divorce.

Filing first does not affect this regulation outright, but it may subtly influence it. Being the petitioner means you may have more time to identify and value assets, which can help you achieve an equitable division of property. The date of service or filing/service issues may affect whether later-acquired property is treated as community or separate.

Spousal Maintenance

In Arizona, alimony is called spousal maintenance. Divorce courts consider factors such as the length of a marriage and each spouse’s earning potential to determine whether spousal maintenance is necessary and, if so, the appropriate amount. The couple’s standard of living during the marriage is also a factor.

Being the first to file for divorce will not automatically entitle you to spousal maintenance or prevent you from paying it if the court deems it necessary, until the lower-earning spouse can support themselves adequately. That said, as the petitioner, you may make the initial proposal for spousal maintenance, which could give you a strategic advantage during negotiations.

Child Support and Child Custody

When it comes to the dissolution of a marriage with children involved, Arizona courts will prioritize the children’s interests. Filing first will not lead to automatic judgments regarding child custody arrangements that work in your favor. As with spousal maintenance, filing first could give you an advantage during negotiations regarding child custody.

The state uses a specific formula using both parents’ income and parenting time to determine child support. Filing first has little to no bearing on that calculation.

When Filing First for Divorce Makes Sense

You may be contemplating a divorce if you feel the marriage is irrevocably broken and you do not want to reconcile with your spouse. You might want to consider filing for divorce first if you experience any of the following situations:

• Your marriage involves domestic violence: Filing first may allow you to request temporary court orders of protection for your safety during proceedings.
• One of you moved, and the other spouse may file in another state: If you live in Arizona and want proceedings to take place in your state, filing first may be ideal.
• You suspect your spouse is hiding assets: Filing first may help you protect your financial interests if your spouse is making large purchases or appears to be hiding assets.

What To Do Before Filing for Divorce in Arizona

If you want to file for divorce in Arizona, you must meet the following legal requirements:

• Either you or your spouse must be a resident of the state for at least 90 days before filing.
• The marriage must be irrevocably broken; you do not have to prove fault to divorce someone in Arizona.
• You must file a Petition for Dissolution of Marriage with the county-level Superior Court and pay the filing fee.

While you do not need an attorney to file for divorce in Arizona, it is helpful to have one. Hiring a lawyer can help with everything from paperwork to negotiations. Your attorney can protect your interests within the parameters of Arizona divorce law.

Let Our Attorneys Help You Navigate This Difficult Time

Does it matter who files for divorce first? Although either spouse can file a divorce petition, the petitioner usually has a greater influence on the early procedural stages. Partnering with an experienced divorce attorney at Lincoln & Wenk with an in-depth understanding of the divorce process in Arizona can help you navigate the proceedings, whether you are the petitioner or respondent.

We can guide you through the complex legal processes surrounding your case and develop a personalized strategy to help you achieve your goals. To request a consultation with us, call (623) 294-2464 today.