The question I am always asked during the first conference with a client is “Does it matter who files first?” The answer to the question is ALWAYS “yes” – but how that answer is given depends on the circumstances of the client I am representing. Oftentimes, the spouse I am visiting with about a divorce does not want the divorce. They are seeing me because their husband or wife has told them they want a divorce and there is no reconciliation possible or wanted. Other times, the actions of their spouse have led them to my office – such as when the secret of an affair has been unearthed and opened to the light of day. And other times, the client I am seeing hasn’t told the other spouse about the certainty of their decision to seek a divorce and needs to know the ins and outs of what will happen when they go forward and tell their spouse of their decision.
Whether a client wants the divorce or does not want the divorce, the practicality of the situation and the chances for a good outcome for them in the difficult position they find themselves is to file the divorce action first – be the Petitioner in the suit. Why? Most people find it counter-intuitive to be the one that does not want the divorce at all – but are being told filing first is best for them. Outside of emotion and appearance to others – family, friends, and co-workers – the logic of being the one that first files the divorce is irrefutable.
1. From temporary hearings – to mediation – to final trial: You get to tell your story first. Huge advantage. It’s also backed by long recognized social science principles. “Serial position effect” is the tendency for a person to recall the first and last things in a series best, and the middle items worst. Human beings (Judge or Jurors) remember the first thing they hear or see (the primacy effect). Which would you rather do – sit in a courtroom for 2-3 hours listening to the other side going on about all the things you did wrong in the marriage and all your shortcomings (we all have them) – or be able to get on that witness stand, or tell that mediator, all your strong points and why the things your spouse is going to say are made up, wrong, and embellished? In Texas mediations, even the Mediator will typically start with the Petitioner to get their side and position first. At every step in the process of divorce, if you filed first you get your position out first. File First.
2. You get the last say. The twin psychological principle to the primacy effect is the recency effect which holds that people also remember best the last thing they hear or see. We’ve all been in arguments and know how important it is to get in that “last word”. As the Petitioner, you have the right to put on the last witness, or piece of evidence, or get back up and refute what your spouse has just been trying to sell the Judge or Jury during their side of the case. You have the right to leave that Judge the last impression, the last fact, the last important detail of your case. If closing arguments are allowed, then your lawyer gets to give the Judge or Jurors that last impassioned plea and summary of your case. Your side of the story is the last thing they will hear when they leave to go make a decision. The other side can do nothing but sit on their hands while your position is left in their ears and brains. Your message will never be as powerful as then. File First.
3, Filing First will effect protection of assets, your children and could bring about reconciliation. Even if you are the one that doesn’t want the divorce, filing first will put orders and rules into an arena that, prior to filing the divorce, had none. Whether your attorney seeks a restraining order to keep the status quo until you can have a hearing or the county in which you reside has Standing Orders governing the conduct of parties in a divorce, the consequences to actions will now have remedies and penalties. Assets will be frozen which will stop a spouse from transferring monies or changing ownerships in businesses while everything is in limbo following the aftermath of the divorce bombshell being dropped. The lives of your children will be stabilized. By filing first, you now have consequences for your spouse draining the joint checking account or turning off utilities, or running up the credit cards in anger. Filing first becomes an insurance policy for you to protect what you have now so you can use some of it in the future.
One ironical consequence to filing first is reconciliation. Filing first and having the spouse served with the divorce petition catches them totally off guard and unprepared – emotionally, financially, and practically – for what is about to happen to them. In more than a minority of cases, the spouse who has been carrying on in an affair that has now been exposed decides that what he or she is about to lose isn’t worth what they thought they were getting. They re-think their position – counseling and rebuilding of the marriage is chosen over life with someone new.
Finally, filing first doesn’t mean ending first. Divorces can go away. The parties can decide to work on the marriage rather than work on the divorce. So, for those that don’t want the divorce and feel like filing first sends the wrong message – take heart – you’re acting decisively, and filing first may just be the thing that could save that marriage. File First.