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 DuPage County, and the other in Cook County, the case can be filed
in one County or the other. The DuPage County resdient would naturally want to file in DuPage County (and not have to
drive into the City for Court), and the Cook County resident may want to file in Cook. 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
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
If you have any questions
related to this topic,
D. Nordini at (630) 306-6300