Should I file first?

Typically, the spouse that files first has obvious advantages in the selection of what is called "venue" and a distinct advantage at trial.


Many divorce and custody lawyers stand by the position that it does not matter who files first, but that is simply not true in nearly all cases.  Most importantly, there are some divorce and custody cases, where filing first could be a crucial litigation decision that could greatly impact the outcome of a case.  Unfortunately, many family attorneys do not understand and fail to inform their client that there are times where filing first does matter.


For example, there are some divorce cases where the choice of courthouse (County and State) could be at stake.  Any attorney will inform his or her client the importance of what is called "choice of venue." Venue is just a legal and fancy word for choice of courthouse.  If you and your spouse (or the other parent) already live in separate households, different States and Counties are at stake.  For example, if one spouse resides in Maricopa County, and the other in Utah, the case can be filed in either of these places, but not both.  


The spouse in Utah would naturally want to file the case in Utah and the Maricopa County spouse would rather not try and find a lawyer and litigate in Utah.  In this case, the decision to file first becomes pivotal and very important in keeping your costs down.

Another good example as to why filing first is important is the case that the spouse who files first has a distinct advantage should the case go to a trial. Now, be mindful that no-one wants a trial.  They take a long time, and cost a lot of money.  Avoid trials, at all costs. However, if your case ends up with a trial, it is the party who files first that is able to first present the facts and evidence of the case (called a "case in chief").  Since judges are human, they too are influenced and swayed by first impressions. 


All things considered, a lawyer that fails to place value on who files first isn't considering all the legal aspects of such an important decision.