Friday, December 27, 2013

Should I Be The First To File For Divorce?

When spouses are preparing to divorce each other, they often wonder whether there is a benefit to being the first to file. When you file first you will have to pay the deposit required by the court. Filing first affords you the following opportunities in a contested divorce:

Restraining Orders
In contested divorces, court restraining orders are sometimes needed to protect spouses from each other’s actions. Such orders are Ex Parte in nature (sought by one of the spouses and granted without notice or an initial hearing allowing the other spouse to be heard). Mutual and temporary restraining orders are sought to protect your relationship with your children and preserve your marital assets.
Mutual and Temporary Restraining Orders are Detailed at:
Temporary Parenting, Temporary Spousal Support, Temporary Child Support Orders

Spouses often request temporary court orders regarding: parenting; temporary spousal support and; temporary child support.

Sample form regarding temporary parenting, spousal and child support orders (Hamilton County Domestic Relations Form 3.2):
See also:
Exclusive Possession of Marital Residence

A spouse seeking exclusive possession of the marital residence may move for such an order when filing for divorce.

Legal Fees and Litigation Expenses
A spouse may have limited resources and may even move the court to award payment of legal fees and the costs of the litigation.



Filing first may allow you to exert some control over what court will have juridiction over your case. Sometimes spouses move away before a divorce is filed in an effort to gain an advantage in later proceedings ("forum shopping").


The Parental Kidnapping Protection Act (PKPA; (Pub.L. 96-611, 94 Stat. 3573, enacted December 28, 1980; 28 U.S.C. § 1738A).

Purpose: to establish national standards for the assertion of child custody jurisdiction within the United States. The home state where a child resided within the past six months is given preference in order to prevent forum shopping. Forum shopping occurs when one parent commences an action in another state for the purpose of obtaining a favorable court ruling.
In addition to its provisions for full faith and credit, the Act provides that a State cannot modify the child custody decree of another state without complying with the terms of the Act. When a State modifies a previous child custody order not in compliance with the Act, the modification shall not be entitled to full faith and credit in other states.

1999 Congressional amendment included “visitation” rights in the definition of “custody” rights covered by the Act.


The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.