Florida Divorce: Does It Make a Difference Who Files First?

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Does It Matter Who Files First?

In Florida, as with other states, it does not usually make a major difference who files for divorce first, becoming the “petitioner.”  Some attorneys suggest that it might make a difference if there are subtle inclinations of a certain judge in one Florida county over the other. If your attorney knows that the judge in the Circuit Court of a certain county tends to grant large child support amounts, for instance, this may affect the attorney’s decision to file first depending on whether his or her client is the money-earning spouse.

Of course, the spouse only has two options in the above scenario: filing for divorce in his or her county of residence, or waiting for his or her spouse to file in the other county of residence.  In Florida, spouses must have lived in the county of filing for at least 6 months before doing so.

Can a Spouse Relocate If the Laws In a Florida County Disfavor That Spouse?

However, where both spouses reside in the same Florida county, it makes little difference who files first. That is, it makes little substantive difference to the outcome of the case, which the judge will attempt to decide fairly (although sometimes unpredictably).  Procedurally, however, it may help the filer in that he or she gets to decide when to get the case going, which determines, in turn, subsequent deadlines.

On the other hand, differences in state law can favor or disfavor the petitioner.  If laws in another state favor a petitioner, there is nothing preventing a spouse from moving there for the express purpose of taking advantage of favorable law.  However, the person moving away must be careful that (during the waiting requirement in the other state) his or her spouse does not “beat her to the punch” and file first in the state of origin. 

For example, Florida is not a “community property” state, but an “equitable distribution” state, meaning that marriage property is divided according to various factors, such as who bought the property to begin with.  Therefore, if a spouse feels that he or she only owns 20% of the property according to these factors, she may want to move to a community property state such as California prior to filing for divorce, in order to get 50% of the cut.

What Other Advantages Could a Spouse Have in Filing For Divorce First?

There are some advantages to filing first which can affect the outcome of the case, but some of them are limited by state law. In many states, spouses filing for divorce first can choose between a fault or no fault divorce. Florida, however, forbids the use of “fault” divorces even if it would be permitted in other states.

Second, the party filing for divorce determines the timetable of the divorce proceedings, which can be important if one side needs time to sort out their affairs. Filing first is even more significant if the spouses are in different states. For example, if a spouse files for divorce in New Jersey while the other spouse is in Florida, New Jersey law can control the case.

Should I Contact an Attorney for My Divorce?

Divorce proceedings can be very complicated.  An experienced Florida family law attorney can help you determine whether to petition first. A family lawyer can also represent you in court if a dispute arises.

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Last Modified: 12-09-2013 02:38 PM PST

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