California Divorce: Does It Make a Difference Who Files First?
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Filing for Divorce
A person may file for divorce in the California Superior Court in his or her county of residence. A person has residency if he or she lived in California for at least 6 months and in the specific county where he or she is filing for at least 3 months.
A divorce will take at least 6 months, but will likely take longer depending on the particular situation. One may file a summary dissolution if he or she was married less than 5 years and does not have children. The other ways to file for divorce are contested or uncontested divorce, which depend on whether the spouses agree to all terms of the divorce.
Ultimately, 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.
Who Is the "Petitioner"?
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 be based on the facts laid out according to 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 include: 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.
Do I Need to Hire a Lawyer?
A qualified California lawyer can provided you more information about the pros and cons of filing first if you are considering a divorce in California. There are also different types of proceedings that need to be filed in court in order to obtain a divoce, and an attorney will be able to explore the nuances of each type of proceeding in relation to your specific circumstances.
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Last Modified: 08-23-2016 10:54 PM PDT
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