Should I File For Divorce First?

We often have clients calling in saying that they want to hurry and hire an attorney because they heard it’s better to file for divorce before their spouse does. Ultimately, this is probably an attorney’s preference more than anything else because divorce laws in Utah do not favor one spouse over another just because they happen to file first. This pertains to custody laws, alimony laws, child support laws, and all other laws dealing with divorce. Practically speaking, the only thing filing first does is determine who presents their case first at a trial, if a case goes that far.  

Advantages To Filing For Divorce First

Some people feel that filing first allows them to set the tone of the divorce. This is true to some extent. For example, if one spouse files for divorce and makes untruthful, outrageous, and aggressive claims in their initial divorce filing, the other spouse is more likely to reciprocate that same energy and make their own outrageous and aggressive claims. Conversely, if one spouse files for divorce and appears to be fair and evenhanded, the other spouse may be more open to settlement discussions that can result in a quick, fast, and less painful divorce process.  

95-98% of cases settle before trial, so it’s unlikely that any given divorce case actually gets that far. If it does though, filing your Petition for Divorce first means you get to present your case first to the judge at trial. Some attorneys prefer this because it allows them to set the narrative of the case, try and control that narrative throughout the trial, and put the other spouse on the defense right from the get-go. If done right, this can be a significant advantage. Essentially, they try and get the judge to make up their mind early about what should happen in the case.  

Advantages To Your Spouse Filing For Divorce First

For every attorney that prefers to file first, there’s another that prefers to file second. Think of these attorneys as counter-punchers in a boxing match, where they like to see the approach of their opponent and then strategically plan for a strong counter-attack. It’s important to know that most trials last longer than a single day—on average, they probably last somewhere between 2-5 days. So, if the other spouse presents their case first, you get to go home in the evening and fine tune your strategy for how to undermine their case when it’s your turn to present your evidence. If done correctly, this can be quite persuasive because you get to be the last impression in the judge’s mind. If you’ve adequately undermined your spouse’s case, they don’t really have an opportunity to rebuild their arguments.  

Which Is Better?

This is that annoying lawyer answer: it depends. You should ask your attorney what they prefer and why so you two can have the same vision for your case. You should also consider your spouse’s actions. Your attorney doesn’t know your spouse, so it’s up to you to inform your attorney of your spouse’s possible actions and how those actions may impact the case. If you feel your spouse is going to file first and start World War 3, you may want to file first to try and set the tone. However, be aware, just because you file first and are reasonable doesn’t mean your spouse has to mirror your same tone, so cautiously consider your approach with counsel from your attorney. In short though, there are no legal advantages to filing first. 

Call Red Law Today

Red Law attorneys have a history of aggressively working for our clients and providing those clients with information to empower them during stressful life events like divorces. Schedule a consultation with us to get started.

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