Striking First: Does It Matter?

Some people think that the law favors the first spouse to file for divorce. Ironically, just as many people believe the reverse.

Who’s right? In Florida, maybe none of them.

In most (but not all) situations, the law of divorce in Florida does not favor either the filer (called the petitioner) or the other spouse (called the respondent). Florida law does not attach “fault” or blame to either spouse for bringing about the end of the marriage, either legally or otherwise.

Having said that, there are often practical, tactical advantages to being the first to file. For one thing, the party who files first establishes the timeline for the case. The petitioner can choose a time that is convenient for the petitioner or, more likely, a time that is particularly inconvenient for the other spouse.

For another thing, the petitioner can secretly collect documentation and evidence for use in negotiations or trial, long before the other spouse is wise to the fact that a divorce is coming. The petitioner can also leisurely develop a legal strategy and build their case before the other spouse gets wind of their plans.

By contrast, when the other spouse is served out of the blue, he or she may be shell-shocked, unable to think straight or act effectively for a while. Yet the twenty days to respond is still ticking by while that spouse scrambles to get himself or herself together, line up an attorney and generally catch up.

So, while there may be advantages to being the petitioner in Florida divorce cases, for the most part, they are not dictated by Florida divorce law.

Unlike divorce law, however, Florida child custody law explicitly favors the parent who files for custody first in certain types of child custody cases (provided that other requirements are also met). But such cases are not the typical child custody case in the typical divorce scenario either.

In most Florida child custody cases in the context of divorce, the advantages of filing first are generally only practical and tactical, as in most Florida divorce cases.