Does it Matter Who Files for Divorce First in Texas? [2023]

Last Updated on September 28, 2023 by Benson Varghese

If you absolutely, unequivocally know that your marriage is over, you may be wondering if you should file for divorce first – or wait for your spouse to make the first move. Legally, it doesn’t matter who files for divorce first in Texas, but there may be some advantages to one spouse striking first.

In this article, we’ll explain the pros and cons of filing for divorce first in Texas and answer some frequently asked questions by divorce attorneys. Please also watch this informative video by Fort Worth divorce attorney Turner Thornton who offers his insights on the matter.

If you absolutely, unequivocally know that your marriage is over, you may be wondering if you should file for divorce first – or wait for your spouse to make the first move. Legally, it doesn’t matter who files for divorce first in Texas, but there may be some advantages to one spouse striking first.

In this article, we’ll explain the pros and cons of filing for divorce first in Texas and answer some frequently asked questions by divorce attorneys. Please also watch this informative video by Fort Worth divorce attorney Turner Thornton who offers his insights on the matter.

https://youtu.be/c1oCXPQSP7A

So, how exactly does someone “file for divorce” in Texas?

In Texas, the divorce process begins when a spouse files something called an “original petition for divorce” with the clerk’s office in the county where one or more control both of the parties reside. The spouse who files the divorce petition is known as “the Petitioner,” while the other spouse is known as “the Respondent.”

The original petition for divorce doesn’t have to be complex or lengthy but must contain some basic information and state that the petitioner is seeking a divorce from the respondent. Once filed with the clerk, a case number will be issued, and a judge will be assigned to the case. When people say they have “filed for divorce,” this is the process to which they are referring.

Is it better to file for divorce first?

Every divorce case is different, so what may be advantageous for one person may not be for another. That said, there are a few potential benefits to the party who files for divorce first:

  • You Choose the Venue.

In Texas, the original petition for divorce must be filed in the county where either the petitioner or respondent has lived for at least 90 days. So, if you and your spouse are already separated and live in different counties, you may prefer to have proceedings in the county where you live.

If your spouse files for divorce first, he or she may opt to have proceedings occur in court location in the county where he or she lives, which may be inconvenient for you. We have had clients who have had to make long drives – or even fly – to attend hearings. Choosing the county in which you live may also be favorable in terms of local rules and judges. So, that’s something to consider when contemplating whether to file for divorce first.

  • You Set the Tone.

When you file for divorce first, you can set the tone for the dissolution of the marriage. Will it be amicable or contentious? If you want to try and resolve things amicably, the original petition for divorce can be crafted in a manner that emphasizes cooperation rather than conflict. On the other hand, if your spouse files for divorce first, he or she may opt to take a more aggressive approach and set the stage accordingly, which could lead to further disagreements and tension down the road. By not filing first for divorce, you control the divorce narrative – at least at the onset.

  • You Control the Timing.

The date on which a divorce petition is filed starts the divorce process. The mandatory 60-day waiting period in Texas begins on that day. Not to mention, once the respondent has been served with divorce papers, he or she has 20 days to file an answer and counter-petition. So by filing first, you control when the process begins and may get a jump on your spouse. This can be advantageous, especially if you want to ask for temporary orders like temporary custody, temporary child support amount, or exclusive use of the marital residence while divorce proceedings are pending.

  • You Go First in Court.

If you file for divorce first, you will have the opportunity to present your case first in court. That means you and your attorney will be the ones who dictate the flow of the court proceedings and the presentation of evidence. This can give you a strategic advantage and help you set the tone for the proceedings. The person who goes first makes the first impression. Hopefully, it is a good one.

What are the disadvantages to filing for divorce first?

Now that we’ve covered the advantages of filing for divorce first, let’s talk about the possible disadvantages of filing spouse it. Again, every divorce is different so what might be a disadvantage for one person may not be for another.

  • You Pay the Initial Filing Fee.

If you are the one who files for divorce first, you will have to pay the initial filing fee and any other associated costs of starting the divorce process. Generally, the initial filing fee is $300 to $400. You will also be responsible for serving the complaint on your spouse, which you cannot do in person. You may have to hire a sheriff, constable, or process server to deliver the documents, which can cost $50 to $100. While these are relatively minor expenses, it could be a factor in deciding who files for divorce first.

  • You May be Highly Emotional.

Filing for divorce first can be extremely emotional. Being the person that sets the wheels of divorce into motion can be overwhelming, especially when it comes to sharing the news with family, friends, and even your children. It can be difficult to deal with all of these emotions while also having to make important decisions about your future. If you file for divorce first, it’s important to have a support system in place and a plan for how to manage your emotions.

So there you have it – some food for thought when considering whether to file for divorce first in Texas. As with anything related to divorce, however, it’s best to consult with a knowledgeable and experienced family law attorney who can assess your situation and provide sound legal advice. They can help you determine if filing for divorce first is the right move for you – and your family.

Want to file for divorce? Contact us today.

If you have made the decision to file for divorce, your next step needs to be consulting with an experienced family law attorney. At Varghese Summersett Family Law Group, we understand the complexities and emotions associated with divorce and will help you through every step of the process. We handle all types of divorce cases, including contested and some uncontested divorce matters, as well as those involving child custody disputes, child support issues, property division, spousal support and more.

No matter the situation, we will provide you with the comprehensive legal advice and representation needed to move forward with confidence. Contact us today at 817-900-3220 to learn more about our family law services and schedule a consultation with a highly skilled Fort worth divorce lawyer. We will be with you every step of the way.

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What are the advantages of being the petitioner in a Texas divorce?

Filing for divorce first allows you to:

* Choose the jurisdiction where the divorce will be filed.
* Set the tone for the divorce proceedings by establishing your preferred terms.
* Control the timeline by initiating the process.
* Prepare emotionally and financially before the legal process begins.
* Obtain temporary orders that can protect your rights and interests.

Are there any disadvantages to being the petitioner?

Some potential disadvantages of filing first include:
* Assuming the responsibility for court fees and costs associated with filing the petition.
* Potentially being viewed as the party who wants to end the marriage, which could affect negotiations.
* Alerting your spouse, allowing them to prepare their defense or counter-petition.

Can filing first give me an advantage in child custody disputes?

Filing first does not automatically grant you an advantage in child custody disputes. The court will focus on the best interests of the child when determining custody arrangements, regardless of who filed for divorce first.

Does being the petitioner impact the division of property in a Texas divorce?

Filing first does not directly affect the division of property. Texas follows community property laws, which require a "just and right" division of marital assets. However, filing first can give you more time to gather financial documents and prepare your case, potentially resulting in a more favorable outcome.

Can filing for divorce first help me secure spousal support?

Being the petitioner does not guarantee that you will receive spousal support. The court will consider various factors, such as the duration of the marriage, financial resources, and earning capacities, when determining spousal support eligibility and amounts.

If I file first, can I change my mind and dismiss the divorce?

Yes, you can file a motion to dismiss the divorce, but if your spouse has filed a counter-petition, they must also agree to dismiss the case. If they do not agree, the divorce proceedings may continue.

How can Varghese Summersett help if I decide to file for divorce first?

The experienced family law attorneys at Varghese Summersett can guide you through the process of filing for divorce, help you understand the pros and cons of filing first, and develop a strategy that protects your rights and interests. Contact us at (817) 900-3220 or online for a consultation.

Filing for divorce first allows you to:

  • Choose the jurisdiction where the divorce will be filed.
  • Set the tone for the divorce proceedings by establishing your preferred terms.
  • Control the timeline by initiating the process.
  • Prepare emotionally and financially before the legal process begins.
  • Obtain temporary orders that can protect your rights and interests.

Some potential disadvantages of filing first include:

  • Assuming the responsibility for court fees and costs associated with filing the petition.
  • Potentially being viewed as the party who wants to end the marriage, which could affect negotiations.
  • Alerting your spouse, allowing them to prepare their defense or counter-petition.
Filing first does not automatically grant you an advantage in child custody disputes. The court will focus on the best interests of the child when determining custody arrangements, regardless of who filed for divorce first.
Filing first does not directly affect the division of property. Texas follows community property laws, which require a “just and right” division of marital assets. However, filing first can give you more time to gather financial documents and prepare your case, potentially resulting in a more favorable outcome.
Yes, you can file a motion to dismiss the divorce, but if your spouse has filed a counter-petition, they must also agree to dismiss the case. If they do not agree, the divorce proceedings may continue.
Being the petitioner does not guarantee that you will receive spousal support. The court will consider various factors, such as the duration of the marriage, financial resources, and earning capacities, when determining spousal support eligibility and amounts.
 
The experienced family law attorneys at Varghese Summersett can guide you through the process of filing for divorce, help you understand the pros and cons of filing first, and develop a strategy that protects your rights and interests. Contact us at (817) 900-3220 or online for a consultation.
Turner Thornton
Turner Thornton
Turner Thornton is a well-known family law attorney in Fort Worth who leads the Varghese Summersett Family Law Group. Turner has successfully guided hundreds of individuals and families through the most trying period of their lives as a skilled negotiator and savvy litigator. Turner Thornton concentrates his practice on family law, including divorce, child custody, contempt, and modification cases. He is experienced in handling estates with significant and unique assets that can be difficult to value. He finds amicable resolutions where possible to conserve his client's resources, but knows how to take the gloves off if the situation calls for it. He has had remarkable results in and outside of the courtroom based largely on his ability and desire to understand his clients' needs and guide them on the pathway to what success looks like for them.

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Nicole Carroll

Nicole Carroll | Senior Counsel

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