Does It Matter Who Files First in a Divorce?

In the grand scheme of things, divorce is not merely a legal process. Divorce is also emotional, financial, and deeply personal endeavor. Time and again, a commonplace question asked by people contemplating divorce is “whether it matters who files first?” The reality is that there is not a black and white answer to this query. The answer is more nuanced. While filing first does not guarantee a legal advantage, it can influence certain strategic and procedural aspects of a New Jersey marriage dissolution case. In this article, we address some facts and factors associated with whether or not it matters who files first in a divorce.

Filing First: Understanding What It Does and Does Not Mean

There are some myths that persist in regard to who files first in a divorce. We hit those head-on at the start of this article:

• Filing first does not automatically entitle one spouse to a greater share of marital property
• Filing first does not automatically entitle one spouse to primary custody of children
• Filing first does not automatically entitle one spouse to increased spousal support

The fact is that New Jersey courts apply the law based on statutory guidelines and the facts of the case – not on who made it to the courthouse first. Judges are trained to remain neutral. Keep in mind that filing first does not sway concrete legal standards.

With all of this duly noted, filing first can affect timing, preparation, and initial positioning in the divorce process (including the initial round of some temporary orders).

Jurisdiction and Venue Considerations

One of the most significant reasons filing first may matter in divorce proceedings involves what is known as jurisdiction. For example, if f spouses live in different states (or one of the spouses plans to relocate) filing first can determine which state’s laws govern the divorce, where the case will be conducted. Differences in state law can affect certain aspects of divorce proceedings including:

• Property division
• Alimony or spousal maintenance
• Child custody determinations

Once a case is properly filed in one jurisdiction, another court is typically precluded from conducting proceedings in the same matter. In these situations, filing first can be strategically important in some cases.

Preparation and Strategic Planning

Filing first allows the petitioner to prepare in advance. This can include taking on such important steps that include:

• Gathering financial records
• Consulting legal counsel
• Evaluating settlement options
• Developing a clear understanding of goals and risks

It’s fair to note that being proactive in this manner has the potential to reduce stress and prevent rushed decisions. However, preparation does not confer unfair advantage on the person who files first in a divorce. Both parties are required to provide full financial disclosure, and courts expect transparency regardless of which spouse commences a New Jersey marriage dissolution proceeding in the first instance.

Temporary Orders and Early Court Involvement

In many divorces case, temporary orders are necessary to address immediate concerns such as:

• Child custody
• Child support
• Alimony or spousal support
• Exclusive use of the marital home

The party who files first often requests these orders at the outset of the case. There are the temporary orders that we made reference to previously in this article.

While judges decide temporary orders based on fairness, equity, need, and the law, the filing spouse may frame the initial issues presented to the court. Temporary orders are not final and can be modified as the case progresses, but they can set short-term expectations and structure.

Financial Protections and Asset Preservation

In certain New Jersey divorce cases, filing first may help protect marital assets – at least to some degree. Once a divorce is filed, automatic restraining orders or financial injunctions often take effect. These orders are designed to preclude either party from dissipating assets, incurring unreasonable debt, or making unilateral financial changes. For individuals concerned about hidden assets, excessive spending, or financial instability, filing first can serve as a safeguard.

Impact on Trial

In New Jersey the party who files first gets to give their opening statement and present their case first during a trial. Due to the fact that only 2% of New Jersey divorce cases go to trial this may not have an impact on one’s case.

Emotional and Psychological Factors

We alluded to some potential emotional benefits that can be derived from filing a New Jersey divorce case first. For example, from a non-legal standpoint, filing first can provide a sense of control and clarity. For some individuals, taking the initiative reduces uncertainty and emotional strain. Every case is different. Emotional readiness and personal circumstances should factor into the decision as much as legal strategy when it comes to making a decision as to whether or not filing first makes sense in a particular situation.

When Filing First Truly Matters—and When It Doesn’t

Finally, filing first may be particularly important in cases involving certain matters or factors that include:

• Jurisdictional issues
• Safety concerns
• Urgent financial matters
• Need for immediate court intervention
• Cases that most likely will go to trial

In amicable or more friendly divorces, mediated cases, or situations where both parties agree divorce is inevitable, filing first often has little practical impact. Ultimately, the decision to file should be guided by informed legal advice rather than fear of losing an advantage. The strength of a divorce case depends on preparation, documentation, and advocacy—not simply on who files first in a divorce. If you are in need of legal assistance concerning a New Jersey divorce, you can schedule a no cost, no obligation initial consultation by calling the Law Offices of Peter Van Aulen at 201-845-7400.