Should I file first?


Lawyer's secret:  The spouse that files first has obvious advantages in the selection of "venue" and at trial.


Many divorce and custody lawyers stand by the position that it does not matter who files first, but that is simply not true in nearly all cases.  Most importantly, there are some divorce and custody cases, where filing first could be a crucial litigation option that could greatly impact a case.  Most divorce attorneys do understand that each case is different, and there are times where filing first does matter.


For example, there are some divorce cases where the choice of courthouse (County) could be at stake.  Any attorney will inform his or her client the importance of what is called "choice of venue." Venue is just a legal and fancy word for courthouse.  If spouses already live in seperate households, and they reside in different Counties, either one spouse or the other can file in the County of their choosing.  If one spouse resides in Maricopa County, and the other in Pinal County, the case can be filed in one County or the other.  The Maricopa County resdient would naturally want to file in Maricopa County (and not have to drive to Court), and the Pinal County resident may want to file in Pinal.  In this case, the decision to file first becomes pivitol.  


Another example is when one spouse resides in one State and other resides in another State.  In this circumstance, the spouse that files first will gain obvious advatages by forcing his or her spouse to litigate in a different State, which could be expensive and very burdensome.  Many cases, when filed in a different State, create so much leverage in the case, that the out-of-State spouse essentially folds on the issues and is forced to accept the terms of a divorce as is handed to them. 


Another good example as to why filing first is important is the case that the spouse who files first has a distinct advantage should the case go to a trial.  At trial, it is the party who files first that is able to first present the facts of the case (called a "case in chief").  Since judges are human, they too are influenced and swayed by first impressions.  By presenting your case first, you have secured the judge’s first impression of all the facts.  While this alone can be rebutted by your spouse's case in defense, no one should not recognize that first impressions do matter.


All things considered, a lawyer that fails to place value on who files first also fails to consider many case examples where filing first does matter, and significantly so.


If you have any questions related to this topic,
contact Paul D. Nordini at (480) 527-9000
or email at: