One of the most common questions that I receive from clients is whether or not there is any benefit to being the first person to file in a divorce case. The answer is yes, there are some benefits to being the first to file, though most of those benefits are indirect and the value associated with them varies with each situation and each client.
The direct benefit of being the first to file in a divorce is that is allows the party who files first to make their statement or assert their claim first, both on paper when the documents are filed and in person when a hearing is held. If a temporary orders hearing is requested by the person who is first to file the divorce, thereafter referred to as the Petitioner, that person has the right to present their testimony and evidence first at that hearing. The same is true at trial. In a typical divorce, this generally does not have a great impact. This right is slightly more valuable when one party is planning to file for a protective order or a temporary restraining order. In those instances, the party requesting the protective order or temporary restraining order may have more of an interest in telling their story first for two reasons. First, under those circumstances, the information presented is likely to be more extreme and more emotional, making the ability to present the more inflammatory information first a little more important. Second, in that situation, the Petitioner may receive some personal comfort from the ability to present their testimony and evidence first, since it is likely to be more stressful.
While the right to present first may not convey a practically substantial benefit, it often does provide comfort to clients and that comfort can be a personal benefit that allows the Petitioner to be a more effective witness.
More importantly, there are some indirect benefits to filing for divorce first. The main benefit to filing a divorce, regardless of which party files first, is starting the timeline of the sixty-day waiting period before a divorce can be finalized in Texas. The earlier that the divorce is filed, the sooner the clock starts ticking down towards it being finalized.
The second benefit to filing a divorce is that, with each petition for divorce filed, the filer is required to attach Standing Orders of the court. These Standing Orders are kind of like the golden rules of divorce. The are a group of rules prepared and endorsed by the District Courts which prevent either party from acting in a manner that is detrimental to the children of the marriage or the marital estate. More specifically, the Standing Orders specifically prohibit both parties from taking actions such as hiding the children from the other party, removing the children from the State of Texas unless a prior order gave them the right to do so, discussing the facts and circumstances surrounding the divorce with the children, threatening the other party to the lawsuit, making large purchases or incurring large debts, preventing the other party from living in the marital residence and other things of this nature. Again, this benefit applies at the time a divorce is filed, regardless of which party filed first.
With regard to the two previously mentioned benefits of filing a divorce, they are not applied based on who files for divorce first, but a divorce must be filed for them to apply. Thus, in both instances, it is merely important that one of the parties files promptly.