When I’m asked if there are advantages in racing to file the divorce first, my answer is, “it depends, because there are also advantages in not filing first, and either way, none of the real or perceived advantages usually make that much of a difference in most divorces in the end.”
Party names: “Petitioner” v. “Respondent”
The party who files the divorce first is called the “Petitioner” and the other party is called the “Respondent.” Some parties find it psychologically advantageous in being the “Petitioner” as opposed to being the “Respondent.” For example, some parties believe that by being the first to file for Petitioner status they are sending a message that the divorce was the other party’s fault. On the other hand, some parties prefer Respondent status so that they can say that the divorce was not their decision. It usually depends on their audience.
Superficial “pros” v. “cons”
Some attorneys will argue that there are advantages to filing first (or even filing second) but then they identify differences that have no meaningful distinction in actual practice, because many real or perceived benefits can be ultimately neutralized. For instance, they point out that the Petitioner can choose the timing of the divorce, which may allow them to, e.g., save money for an attorney or protect (or hide depending on your perspective) marital assets. Others will point out that the Petitioner presents their case first at trial. But most divorces do not end up in trial, and even if they do, both parties have the opportunity to present their cases. Also, both parties inevitably find the financial resources to retain attorneys, and the Respondent can and usually does file their own “divorce” as a counterclaim. It’s also very difficult to “hide” marital assets these days, because of the subpoena power and discovery rules that expose digital/electronic trails of, e.g., money transfers, etc.
Some attorneys contend that there may be a benefit in filing second as Respondent, because they get an opportunity to review the petition for divorce and game plan their legal strategy for their Answer based on the petition. But Utah civil procedure rules allow both parties to amend their pleadings, i.e., petition or counter-petition, at least once depending on timing or with the Court’s permission or the opposing party’s written consent.
The bottom line is that in most cases, the only meaningful difference between being a Petitioner and Respondent is that the Petitioner will pay about $200 more in court filing fees in filing their petition for divorce than a Respondent who has filed a counter-petition for divorce.
Two possible significant advantages in filing divorce petition first in minority of cases
- Court Venue or State Jurisdiction
Now, having said all that, I can think of two advantages in filing the divorce first in a few cases that may or may not provide a considerable advantage. The first example goes to county venue or state jurisdiction. If parties have been separated for a length of time and relocated to a different state or even a different county within Utah, and they file the divorce in their new county or state after establishing residency (3 months for new county venue and 6 months for new state jurisdiction), that could create a home court advantage for that filing party. Most states have similar (not always the same) custody laws using the “best interest of the child” standard, but even the same laws within Utah are not always applied uniformly from District Court to District Court or judge to judge. And, marital property/debt division laws can be very different in, e.g., the minority community “equal division” property states (like surrounding Idaho or Nevada) compared to the majority common law “equitable division” states like Utah. At the very least, the Respondent may have to travel great distances to appear and participate in court motion hearings or trials. In the law, this is a form of what we call “forum shopping.”
- Accompanying Protective Order Cases
One other possible advantage in filing for divorce first is in companion cases where both parties can claim or allege physical abuse. Many times, in these cases, the party filing the divorce petition will subsequently file a request for an adult Protective Order (with the children as “protected parties”) or a Child Protective Order. (These parties filing for protective orders are also called the “Petitioner.”) To protect these parties who have alleged sufficient facts regarding physical abuse or imminent physical abuse to satisfy the elements required for a protective order, the court will issue temporary protective orders ex parte (meaning without hearing from the other party or “Respondent”) at least initially. A deputy-sheriff will personally serve the temporary ex parte protective order on Respondent in the protective order case and a hearing must occur within 20 days by statute to give both parties an opportunity to present their case.
In my professional experience, the reason that protective orders can create leverage in a divorce case involving children where there’s a custody dispute is because Respondent is oftentimes not to able to exercise any parent-time (unsupervised or supervised) for at least 3 weeks until the evidentiary protective order hearing. And, in some cases, criminal charges are also filed based on the same facts for, e.g., Assault and Domestic Violence in the Presence of a Child (as Class B Misdemeanor charges for parties who have no domestic violence criminal history). If there’s a reasonable possibility that Petitioner can prove their case for physical abuse at the evidentiary protective order hearing, the Respondent has to decide whether to contest or fight the civil protective order case, because statements or admissions made on or admitted into the record in the civil evidentiary protective order hearing can be used against Respondent in the criminal matter. Both parties in these cases need an experienced criminal and family law attorney to make these difficult determinations applying the law to the facts of their case. Casey T. Hoyer at HOYER LAW, P.C., is one of the few attorneys in the state who has extensive experience in practicing both family and criminal law.
To put it simply, sometimes these custody/parent-time arrangements made in protective order cases (reached by agreement or court order) early in the divorce case can create a “status quo,” which is hard to overcome for Respondent later in a custody evaluation or trial. Most of the time, protective orders that are arguably being “weaponized” (or not) to gain an advantage in the related divorce can be neutralized and have no impact on the divorce in the end but sometimes they do.