As family lawyers in Franklin, TN, we are often asked, “Does filing for divorce first give me an advantage?” The answer depends on your unique circumstances. Generally speaking, Tennessee judges are obliged to treat the defendant and the petitioner equally. That said, filing first and assuming the role of the petitioner can have strategic benefits in certain situations.
Our Franklin divorce lawyers will delve into the legal, financial, and even emotional factors to help you better understand whether filing first might be advantageous for you.
What Does Filing for Divorce First Mean?
In any divorce, the person who initiates the process by filing the petition is known as the petitioner for divorce or the plaintiff. At the same time, the other party is referred to as the respondent.
Filing for divorce involves submitting the initial paperwork. In Franklin (Williamson County), this involves filing a complaint, which outlines the grounds for divorce with the court and the mandatory filing and filing of the Certificate of Divorce.
Thereafter, the Clerk of Court issues a summons. The summons and complaint must be served to the respondent to proceed with the lawsuit, a task typically done by a Sheriff’s Deputy.
Tennessee is a fault-based divorce state. Under the fault-based divorce doctrine, the court can only grant a divorce when the petitioner proves the grounds for the divorce. It may involve allegations such as adultery, abandonment, or abuse. The petitioner establishes the grounds for divorce in their filing, which can set the tone for the proceedings.
However, the court may grant divorce under “irreconcilable differences” when both spouses agree to the divorce and all of the divorce terms. In such cases, neither party has to prove wrongdoing.
Potential Advantages of Filing First
While filing first is not always critical, it can provide several strategic advantages:
Choosing the Venue
If you and your spouse reside in different jurisdictions, the petitioner typically selects the venue for hearing the divorce case. This decision can be strategically significant, especially if the Tennessee jurisdiction is more favorable for certain issues, such as child custody or asset division.
Setting the Timeline
Filing first puts you in control of initiating the divorce process. This advantage often provides more time to prepare financially and emotionally before serving your spouse with the papers. Additionally, filing the Complaint means you control, giving you ample time to prepare better by gathering and validating all the evidence needed in court.
In the same vein, filing a divorce complaint first may allow you to speed up the process if you want a speedy divorce.
Presenting the Case
In court proceedings, the petitioner presents their case first. This allows the petitioner to frame the narrative and potentially influence how the judge perceives the case.
Standing Orders
Filing a divorce first ensures certain injunctions that might help you take effect. Under the T.C.A. § 36-4-106 mandatory injunction, as soon as you file for divorce, the state prohibits your spouse from draining bank accounts, changing the beneficiaries on retirement accounts and life insurance policies, and selling off assets.
These are important legal standing orders if you suspect your spouse will try to hide assets if they suspect you want to file for divorce.
Temporary Orders
Filing first can enable you to request temporary orders early in the process. These orders can address critical issues such as child custody, spousal support, or the use of shared property, providing stability during the divorce proceedings.
Other benefits of filing for divorce first include the possibility of dismissal upon reconciliation.
Does Filing First Impact Custody or Asset Division?
In Tennessee, child custody and asset division decisions are made based on the best interests of the child and the principle of equitable distribution, respectively. This means that who files first does not inherently sway the outcome.
However, filing first may give the petitioner more time to gather evidence, prepare arguments, and develop a strong case for custody or asset division. For example, if you suspect your spouse may dissipate marital assets or attempt to gain an unfair advantage, filing first can help secure temporary orders to protect your interests.
Emotional and Psychological Factors
Divorce is an emotionally challenging process, and filing first can offer some psychological benefits. For instance, being the petitioner accords you a sense of control over the divorce proceedings. Taking the first step can provide a sense of empowerment during a time of uncertainty.
Additionally, being the petitioner reduces the uncertainty you experience. By initiating the process, you take action instead of waiting for your spouse to act, which can alleviate anxiety. For many clients, filing first is a way to assert their readiness to move forward and begin resolving their divorce. This bodes well for the healing process.
Situations Where Filing First May Not Matter
While there are advantages to filing first, certain situations render this step less significant:
Uncontested Divorce
In an uncontested divorce, both parties agree on all major issues, such as custody, support, and property division. Since there is no dispute to resolve in court, filing first holds little strategic importance.
Shared Jurisdiction
If both parties live in the same jurisdiction and only one venue is appropriate to adjudicate the divorce complaint, the choice of venue is not a factor. In these cases, filing first does not provide any tactical advantage.
When Filing First Is Critical
In some cases, filing first can be a crucial step to protect your interests:
Protecting Yourself Financially
If you suspect your spouse might dissipate or hide marital assets, filing first allows you to request temporary orders that freeze or safeguard those assets.
Domestic Violence or Abuse
For individuals facing domestic violence or abuse, filing first enables you to request protective orders or restraining orders. This step can provide safety and ensure that appropriate legal protections are in place.
Relocation Concerns
If there is a risk that your spouse may attempt to relocate with your child, filing first allows you to seek temporary custody orders to prevent this from happening.
How to Decide if You Should File First
Deciding whether to file first is a significant choice that depends on your unique circumstances. Here are some considerations/steps to help you make an informed decision:
- Consult a Family Law Attorney: Speak with an experienced divorce attorney, like our team at Durak, to evaluate your situation. They can provide guidance on the potential benefits and drawbacks of filing first.
- Consider Your Goals: Reflect on your priorities, whether they involve protecting assets, securing custody, or addressing safety concerns.
- Evaluate the Strategic Advantages: Discuss with your attorney how filing first aligns with your goals and whether it gives you a tactical advantage in your case.
Considering Divorce? Call an Experienced Divorce Lawyer in Franklin, TN
While filing first for divorce in Tennessee is not always necessary, it can provide significant advantages in certain situations. From choosing the venue to securing temporary orders, taking the initiative can help protect your interests and set the stage for a more favorable outcome.
At Durak Law, we understand that every divorce is unique. Our team is here to help you navigate the process, evaluate your options, and determine the best course of action for your case. Contact us at (615) 812-2829 to schedule a consultation and take the first step toward resolving your divorce.
