Many people believe that filing for divorce first gives them an advantage over the other spouse, such as having more of a say in property division or child custody. This is a misconception. In reality, it does not matter which party files first. In California, neither party can gain an advantage by filing the divorce petition. Rest assured that if your spouse has already taken the first step toward dissolving your marriage, you will still have the opportunity to make your wishes and demands heard.
California’s No-Fault Divorce Law
In the past, state law required the party who filed for divorce to prove that the other spouse was at fault for the dissolution of marriage; for example, that the spouse committed adultery, was impotent or clinically insane. Under the previous fault divorce law, it mattered more which spouse filed the paperwork, as the burden of proof would rest with the filing party (the petitioner).
Today, California no longer uses a fault divorce law. It is a no-fault divorce state that simply requires a couple to list “irreconcilable differences” as the reason for getting a divorce. Irreconcilable differences mean there is an irretrievable breakdown in the marriage that cannot be fixed or remedied; in other words, there is no hope of the couple reconciling their differences and getting along.
Being the Petitioner vs. Respondent in a Divorce Case – Does it Matter?
Without proof of fault as a requirement, it does not really make a difference who files for divorce and who takes on the role of respondent in California (the spouse that files a response to the other party’s divorce petition). Multiple hearings will take place from the time that the initial paperwork is filed to the finalization of the divorce. At these hearings, both parties will have equal opportunity to argue for the terms that they want.
Most attorneys agree that there is little legal advantage in filing first. However, there could be a few potential benefits, depending on your situation. If you and your spouse are separated and live in different jurisdictions, for example, the person who files for divorce can have a geographical advantage, as the case will be heard in this jurisdiction and the petitioner will not have to travel as far to meet with a lawyer or go to court.
If you are concerned about your spouse hiding assets, stealing money or disappearing, you may want to file first so that you can obtain a temporary court order, such as emergency custody orders. In addition, the filing party will get to speak first during divorce hearings and mediation. This is not a major advantage, as the respondent always has the chance to respond. The respondent also has the opportunity to file a request to modify the initial petition. This takes away the petitioner’s ability to control the divorce case.
What Happens Next After Someone Files for Divorce?
Filing first may not give you any real advantage over your spouse in a divorce case, but it will impact what the divorce process looks like for you. If you wish to file first, you will be the one who has to obtain or download the required dissolution of marriage forms in California. You are also the person who must fill them out – most likely with assistance from a divorce lawyer in San Diego – and submit them to the correct family courthouse.
If your spouse has already filed for divorce, you will need to submit a response (unless you agree with all of the terms proposed by your spouse). If you do not agree and wish to negotiate, you will need to file your response within 30 days or risk a default divorce. This is a dissolution of marriage that grants the petitioner the conditions that he or she wants without giving the other spouse the chance to contest them. If you need assistance as a petitioner or respondent in a divorce case in San Diego, contact an attorney.