We're getting a divorce. Which one of us should file the paperwork?

You and your spouse have decided to divorce. You’ve had the conversation, one of you has moved out, or the writing is simply on the wall. However, neither of you has taken the final step: officially filing for divorce in a Washington state court. Should you wait for your spouse to file, or are there advantages to starting divorce proceedings?

Initiating Divorce Will Usually Not Affect the Outcome

In most cases, there are no advantages to being the petitioner (the person who files for divorce) instead of the respondent (the spouse who did not file). The respondent will not be seen as the person at fault for the divorce, and the judge will not treat the petitioner differently than the respondent based on who filed.

If you are expecting a relatively simple and low-conflict divorce, it probably does not matter whether you or your spouse initially file for divorce. On the other hand, if you believe that your divorce may involve a contentious court case or a custody battle, it could be slightly in your favor to file for divorce.

In general, petitioning for divorce can allow you to:

• Create temporary orders. The petitioner can file a motion for temporary orders at the same time as filing the divorce petition. These orders say who gets to live in the family home, who gets to drive the car, and when each parent gets to spend time with the children while the divorce is pending. Temporary orders for alimony and child support can set everyone’s expectations for the rest of the case.
• Speak with a lawyer first. You may not need an attorney to fill out divorce paperwork, but waiting until after filing to see a lawyer is a missed opportunity. An attorney can help you decide on temporary orders, assess your situation to plan the best way forward, and prevent you from making costly mistakes.
• Speak first at trial. The petitioner presents their case first in divorces that go to court. Some believe that being able to tell their side of the story first is an advantage, especially since the petitioner decides which witnesses to call first at trial.
• Speak last at trial. The petitioner makes closing arguments first at the end of the trial, effectively giving you the first and last word in court. However, the majority of cases won’t go to trial, so these advantages may not apply.
• Take control. A petitioner may simply feel empowered by being the one to file for divorce—especially if the person filing for divorce has felt a lack of control in the final years of marriage. In some cases, a spouse may feel more confident about the divorce proceedings by taking the final step to go ahead with a divorce. This may be especially true in cases that involve domestic abuse or emotional trauma.
• Learn about your assets. You will need to identify all of the family assets to get a fair settlement, which can be difficult if you have significant assets or your spouse controls the finances. An attorney can help gather documents such as mortgage statements, bank statements, retirement account paperwork, and other titles of ownership. A full account of your property and the current balances in your accounts makes it more difficult for a spouse to transfer property, money, or assets undetected before the divorce.
• Prepare for the future. If you discuss your future plans with your attorney before filing, they can prepare you for court and make sure you have reasonable expectations for after the divorce is final.

Let Us Advise You Before You Petition for Divorce

While none of these benefits is likely to significantly change the outcome of the divorce, you may need to speak with our Seattle divorce attorney to see whether filing your divorce first would give you an advantage. Call the Law Offices of Molly B. Kenny today at (425) 460-0550 to arrange a private consultation, or use our online contact form to have us get back to you. We also invite you to read through our free guide, 9 Urban Myths about Divorce That Can Hurt You.