Learning Center

Does it matter who files for divorce first?

The short answer is no. In the eyes of the Court it does not matter who files first. However, there are other factors to understand and consider before filing for divorce in Florida.

No Fault Divorce State

Florida is a No Fault Divorce State. This means that you do not have to plead a reason why the marriage is ending other than your marriage is “irretrievably broken.” Neither party has to claim that the other party is a “cheater” or that they have abandoned the marriage.

 Does it matter who files for divorce first?

Some states allow for at-fault divorces, meaning that one of the spouses would have to prove to a judge that the other spouse is the reason the marriage has deteriorated. This is not the law in Florida. It is also not required that one party prove infidelity / adultery.

Furthermore, there is no “legal separation” in the state of Florida. Even though, you and your spouse may have been living separate lives for years, you are not legally separated and your marriage is still intact. Lastly, Florida does not require any waiting period before you can be divorced by the Court. For example, you could be divorced from your spouse within thirty (30) days of the date that you file for divorce, if all parties are in agreement.

 Does it matter who files for divorce first?
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In the Court Room

 Does it matter who files for divorce first?

Although there is no direct benefit to the party who files for divorce first, there may be other benefits for you to consider. When your case goes to trial, your attorney will get to address the Court first. This means that he or she will be able to make the opening statement and call witnesses before the opposing attorney. While a judge needs to be neutral to all parties during a divorce trial, the attorney who speaks first gets to lay the groundwork that will build the trial. This is a minor benefit, but can come with advantages.

By filing first – or at least planning for divorce in advance – you should be at an advantage in many regards, including:

  1. securing financial paperwork (including tax returns and bank statements);
  2. securing credit;
  3. safeguarding valuables; and
  4. preparing your children, family, employer, financial advisor and accountant.

Getting yourself “mentally prepared and organized” for divorce can be quite beneficial.

In the same vein, filing second could put you at a disadvantage as your spouse may “get a jump” on removing financial documentation from the house, removing cash and valuables, canceling credit cards, changing passwords, “poisoning the well” with your family and friends or by filing “bogus” domestic violence actions to get you removed from the marital residence.

Is the filing date important?

The filing date of your petition to divorce is a “line of demarcation” for identifying marital assets and liabilities. The filing date is important in this instance because it sets your length of marriage for alimony purposes. It also cuts off the other party from benefiting from your contributions to your retirement plans (i.e. 401k or defined benefits plans). By filing first, you choose the “line of demarcation” which could benefit you thousands of dollars, if not more, depending on your financial position. An experienced divorce attorney should be able to advise you on the pros/cons of a certain filing date.

Divorce proceedings may take between six (6) and eighteen (18) months to be completed, so it is important to limit your spouse’s ability to benefit from post filing contributions to your retirement plans.

 Does it matter who files for divorce first?
Click the image to chat live or call us at 954.462.8035