Filing for Divorce First – What Does it Get You?

Litigation is what it gets you. Filing a Complaint for Divorce with the court and having your spouse served with that Complaint by either the sheriff or a process server starts your divorce on the road to trial. To read a bit about what this means click here.

Advantages and Disadvantages to Filing First

There are some advantages to “filing first.” You should understand what those are before you take an attorney’s advice to “be aggressive” or “just go ahead and file.” In some situations this tactical move is necessary.  For instance, you are in an abusive relationship or you know or strongly suspect your spouse is hiding or wasting your marital assets.

The benefits of being the party to start the divorce case are mainly procedural.  If you and your spouse don’t live in the same county then the party who files first gets to choose in which county to file.  You will not however, get to choose the judge that is assigned to your case.  And regardless of the county or judge, the law that applies to your divorce will be Georgia divorce law.

If you file for divorce, you get to choose when the divorce action begins. The day you file for divorce you and your spouse are put on the court’s calendar and will have regularly scheduled hearings and will be required to meet all of the court’s filing deadlines and file financial and other personal information with the court.

If you file for divorce, you get bragging rights – “I filed for divorce” or “I had him served with divorce papers.” Filing first might be cathartic, but that feeling can fade as the divorce process drags on.

There are emotional and procedural disadvantages to filing first. Your spouse might be blind-sided and angry and, after they have hired their own aggressive litigation attorney, they respond to your complaint and raise a lot of issues you were not expecting. You are then on defense, amending your complaint to respond to their response. And so it will go.

A Modern Approach to Making the First Move

You can still make the first move without “filing first.” What most of our clients really want to do is figure out a way tell their spouse that they want a divorce and have a plan for negotiating the terms of the divorce. First, we help our clients do the work to prepare for divorce – think about a parenting plan, identify the issues that will likely be the trickiest to discuss or work out, understand, and sometimes even unearth, their finances. Then, we put it all down on paper. Our goal is to“file” only after reaching resolution. That filing tells the court that you and your spouse have resolved all of your issues and asks the court to finalize your divorce. You might not even have to go to the courthouse.

If you hire a lawyer whose core competency is litigation, you will end up in court (actually, there is a 95% chance you will end up settling out of court after months of conflict and expense). If you hire an attorney whose core competency is finding creative solutions to the issues which inevitably arise in any divorce, you can stay in control of your divorce process and save thousands of dollars in attorneys’ fees.

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