In a California divorce case, there is a petitioner and a respondent. The petitioner is the party who files for the divorce, and the respondent is the party who receives the petition and must respond. If you’re considering a divorce, you’ve likely thought about which side you want to be on – the side filing or receiving. In California, neither party has an advantage. It’s only a matter of who wants to take the first step toward the dissolution of marriage.
California’s No-Fault Divorce Laws
Filing for divorce first would only affect the proceedings if the courts took fault into account when dividing property and assigning spousal support. In some states, the courts will consider fault in these decisions. If one spouse had an affair, received a felony conviction, or otherwise caused the divorce to come about, the courts in fault states might rule less kindly for him or her. California, however, abides by no-fault divorce laws. This means the courts make divorce decisions without looking at who may be at fault for the split.
In a fault state, it might matter who files first. Filing first could be a sign that the petitioner is the “victim,” while the respondent is the one who caused the divorce. This could sway the court’s decisions in terms of property division and alimony payments. Filing first in California does not apply same conditions. The courts are not concerned with who files first, since they don’t care who is at fault for the dissolution. There may still be a few reasons you would want to make the first move when it comes to divorce proceedings.
Reasons to File First in California
Filing first might not affect property division or court decisions, but it could play a factor in other aspects of your life. If you or your spouse currently live in different jurisdictions (separate cities or states), the petitioner has an advantage in that the other party will have to travel to his/her jurisdiction for court proceedings. The person who files first gets to “pick” where the divorce process will take place. The petitioner will also get to retain a divorce attorney nearby, while the respondent will need to hire one in the jurisdiction where the petitioner filed.
If you need temporary court orders during your divorce proceeding, you will want to file first. Being the petitioner can come with temporary child and spousal support orders, as well as rulings such as restraining orders in situations involving domestic violence. If your spouse poses any risk of stealing your assets, hiding assets, or taking off, you may also want to file first. While these instances are rare, they do happen. Filing right away can help you protect assets and prevent them from disappearing. Upon filing, temporary orders automatically go into effect that stop either party from encumbering assets.
Finally, the petitioner will be the party who talks first during divorce hearings and mediations. The petitioner and his/her attorney speak first, followed by the respondent’s reply. If it means a lot to you to speak first during divorce proceedings, you may want to file first. Keep in mind, however, that the respondent has the power to file requests to modify your petition. Filing first does not mean you can completely control the situation. Speak to an attorney for individual advice about when to file for divorce in California.
Potential Disadvantages of Filing for Divorce First
If you are the person who files for divorce, you are putting everything you want out in the open. The documents you file must include details of how you would like your assets to be divided, what type of child custody arrangement you desire and other terms of the divorce. This will give the other party a sense of your divorce strategy, which can then be used to adjust their own tactics and respond accordingly.
Another disadvantage is that the filing party has to pay more. They must pay a filing fee when the documents are sent to court. This fee is currently $435 to $450 in California, unless the individual qualifies for a waiver of this fee based on his or her financial situation. If the respondent wishes to issue a Response to the divorce papers, he or she must pay the same fee when filing it with the court.
However, the petitioner must also pay for a process server – an individual who is responsible for delivering legal documents to defendants. The petitioner cannot serve divorce papers on the respondent himself or herself. Hiring a process server could cost hundreds of dollars. This is an expense the respondent does not have, as he or she must only pay to file the Response with the courts.
California’s Divorce Filing Process
After a divorce petition is filed, the respondent has 30 days to file a Response. The petitioner must show the court proof that the papers were served on the respondent or a reasonable attempt was made to locate the respondent for this purpose. If the respondent does not issue a Response within the required time period, the courts may issue a default divorce, where the petitioner gets everything he or she requested in the petition without contest.
If a Response is filed, the couple can negotiate between themselves to determine their own terms for the divorce. If possible, the couple will come to a settlement agreement, which the courts will sign and turn into an order without the case having to go to trial. This may require mediation or arbitration with assistance from a divorce attorney. If the couple cannot agree on the terms of the divorce, the case will proceed to court.
In divorce court, the petitioner gets to make his or her case first and the respondent gets to reply. Therefore, neither party has a particular advantage over the other in a divorce trial, although the petitioner will get to speak first. Your Sacramento family attorney may recommend filing for divorce first if there is a perceived strategic advantage to telling your side of the story first in the courtroom in your particular case.
A Divorce Attorney at Boyd Law Can Help You Determine Whether You Should File First
Every divorce case in California is unique. Whether or not you should file for divorce first depends on your situation and goals for the case. Before you make your decision, schedule a free consultation with a divorce lawyer in Sacramento at Boyd Law. We can give you personalized legal advice at no cost or obligation. We are here to help you make the wisest decisions possible from the very beginning of your divorce case.
