• Does it Matter Who Files First in a Texas Divorce?
  • July 4, 2001 | Author: Bryan Joseph Fagan
  • Law Firm: Law Offices of Bryan Fagan - Houston Office
  • A divorce is something that very few people want to start but if you have to go through it you want to be the one to file rather than respond to it.

    Even those potential new clients of the Law Office of Bryan Fagan who know little to nothing about divorce have the idea that it is absolutely essential to be the spouse who files the divorce.

    Many of them have the impression that if they are not the first to file they will be at a disadvantage in their case.

    The thought is that if they are not the spouse who files the divorce they will be at a disadvantage for one reason or another. Is this actually true? Read below to find out how important it is to file rather than respond to a divorce petition.

    The Petitioner is the party that files for divorce

    In a divorce case the party who files the divorce is known as the “Petitioner” and the party that files an answer is known as the “Respondent”. We can discuss the Petitioner first.

    The Petitioner will pay more money up front to file their divorce petition than the Respondent will pay to file an Answer.

    In most counties across the State the filing fee for a divorce petition is somewhere between $300 and $400. In the grand scheme of things these costs are not all that high but if you are trying to stick to a budget every dollar can count.

    Payment of Initial Filing Fee

    The spouse who files first (The Petitioner) also pays the initial filing fee. Generally, the initial filing fee is $300 to $400.

    The other spouse (respondent) can file their response an answer which is free to a few dollars. The responding spouse can also countersue for divorce by filing a counterpetition for divorce this counterpetition is $50-$100. Either way the spouse who files generally pays more in filing fees.

    Choosing Which County to File In

    Another advantage to being the Petitioner that is more significant than saving a few hundred dollars is choosing the county in which your divorce is filed in. In many divorces, the parties do not have a choice on what county to file in.

    If, however, the parties reside in different counties (and have done so for at least 90 days) there will likely be a choice on where to file the divorce.

    The big plus to filing the divorce in your home county is to convenience yourself and inconvenience your spouse. Our office has a current client who is the Petitioner in his divorce and he has forced his wife to drive in to Montgomery County all the way from a town just outside of Austin for every court appearance.

    This client has seen an advantage not only from making his spouse drive for a court date. He’s also could negotiate from an advantageous position in that, when our office and his wife’s attorney negotiate we are more than willing to have her drive eight hours round trip to attend a court date.

    Her willingness to do so has diminished as the case has gone on and we’ve seen her agree to things that we otherwise probably wouldn’t have if a drive to court were more manageable.

    Setting the Tone of the Divorce

    Whoever files first sets the tone of the divorce by deciding whether to plead fault or no fault in the divorce. However, this can change, because pleadings can be amended and changed by either party.

    Many, times clients have fault grounds but want to try and resolves things amicably at least at first. So often times we will see if we can resolve things in mediation. If we are unable to we will reevaluate afterwards whether to amend the pleadings and plead for fault.

    Going first at trial or other hearings

    It isn’t likely that your divorce case would go to a contested trial but if it does being the Petitioner allows you to present your case first before the Respondent. An advantage to going first is that you are able to leave a powerful first impression on the judge with your testimony.

    From there, your spouse would have to make up ground with the judge in convincing him or her of the strength of their case.

    Although a trial is not likely, a temporary orders hearing near the outset of your divorce is much more likely to occur.

    A strong temporary orders hearing can not only put in place favorable temporary orders but can dissuade your spouse from wanting to try to go to the judge again. This leaves you in a strong position as far as negotiations are concerned.

    Timing and Relief Requested

    As discussed above Temporary Orders are not uncommon when a person files for divorce, that person can request a Temporary Orders Hearing in the Original Petition for Divorce. The purpose of the Temporary Orders is to put some orders in place on how the parties will behave during the divorce.

    The Judge is going to make orders that will remain in place during the divorce. These orders will include will say what visitation will be with the children, conservatorship of the children, child support, who gets to remain in the marital residence while the divorce is going on, temporary spousal support, and who will be responsible for certain bills.

    If you and your attorney file for divorce that will give you a few extra weeks to prepare for any hearing. Temporary orders hearings are essentially mini trials that go over visitation and conservator rights of the children as well as the financial responsibilities of the parties during the divorce. Filing for divorce gives you and your lawyer the extra time that can be a nice advantage.

    Help Prevent Assets from being Hid

    A final advantage for a filing party is to ensure that, if you need it, a court date can be set earlier rather than later. The reason that this is important is if your spouse decides to hide an asset (or spend one) you can jump in and prevent that from happening by having a court order created. Before a court issues an order either spouse can do essentially whatever they would like with their marital assets.

    To keep this from happening the filing party can immediately request a court date. The clerk of the court will assign the parties a date and then have a notice of hearing served along with the Original Petition for Divorce. From a tactical standpoint, your spouse will again have less time to prepare for this hearing and you will have peace of mind that no funny business can go on.

    What if you are unable to file first?

    If you are unable to file first, you should not worry. As a responding spouse you can still participate the divorce process. You will have opportunity to file an answer and counterpetitioner with the Court.

    When time is of the essence, contact the Law Office of Bryan Fagan

    It isn’t always essential to race to file a Divorce Petition, but if you find yourself in a position where you need to get the ball rolling on a divorce the attorneys at the Law Office of Bryan Fagan are equipped to help. Our attorneys and staff make your case a priority from the moment you decide to hire us.

    Our attorneys are available six days a week to meet with you and offer free of charge consultations. We represent clients across southeast Texas and pride ourselves on representing families to the best of our abilities. Whether you are filing for divorce or responding to a divorce petition the Law Office of Bryan Fagan is equipped to help.