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California Divorce: Does It Make a Difference Who Files First?
If the divorcing couple is living together, a divorce is filed in the California Superior Court in the county of residence of either spouse. One spouse must have lived in California for at least 6 months prior to the divorce and in the specific county for at least 3 months.
In the case where both spouses are living in the same county, it does not matter, as a general rule, who files first. This is because the judge will make an equitable determination based on the facts of the case, not on who files first. However, some attorneys make the argument that moving first matters. As in tic-tac-toe and chess, moving first can set up a series of advantageous moves down the line.
For example, the first person to file a California petition for divorce is called the “petitioner.” The advantage of filing the petition is that temporary court orders may follow from the petition. This petition will set temporary child and spousal support, will define who will live in the home and use the car during the divorce, who will pay bills, and so on. However, the respondent can file a request to modify the petition. The petitioner can speak first in all other proceedings, hearings, mediations, etc. Petitioners can also choose certain court dates by initiating actions at certain times.
Most experts hold, however, that there is little advantage to filing first, unless there has been legal separation resulting in different residences prior to divorce. Where spouses live in different counties of California, attorneys may know the judge or know of slight biases in one county or the other. Also, there are travel considerations of the responding party to the county of filing.
If the spouses live in different states, the person who files first can generally file in their state of residence. The concern then becomes differences in state law. Issues are: California “community property” (where all marriage property gets divided roughly in half), alimony and child support guidelines, waiting periods, and whether the state has a “no fault” divorce policy. The spouse who files first may be able to choose the preferred forum.
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