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Texas Divorce: Does It Make a Difference Who Files First?
In Texas, and in divorce cases in general, it does not make a big difference who the “petitioner” (person who files first) is, as opposed to the “respondent.” This is because a judge must fairly consider various factors set forth by statute in coming to his ruling on the case. For example, Texas is a “community property” state, meaning that each spouse gets roughly half of the value of property acquired during the marriage.
All that remains in dividing the property, then, is for the judge to decide when the property was acquired and by whom. This involves the credibility of testimony, direct evidence such as a receipt, and other circumstantial evidence surrounding the case. Therefore, it won’t make much of a difference to an experienced trial judge whether one spouse gets to explain his or her version of the story first.
However, there may be some advantage in filing for divorce first in the District Court of the Texas county in which the petitioner resides, if the respondent lives in another Texas county. Some Texas judges are especially sympathetic to children and thus may grant more child support, while others may be especially sympathetic to spousal abuse cases, thus denying visitation rights to the abusing spouse. An experienced attorney in the area may be familiar with the particular dispositions of local judges.
In addition, differences in state law can favor the person who files first, if spouses reside in different states. For example, in Texas, a child 12 years of age or older may write to the court specifying the parent he or she would prefer to live with. A person who may be denied custody in other states (with a higher age requirement) because of irresponsible or illegal activity, for example, could try to file in Texas if the child is willing to write a note.
However, the Texas domiciliary requirement of more than 6 months may pose a problem. It is more difficult to become a domiciliary (with the intent of living there forever), as opposed to regular Texas resident. In summary, there may be advantages to filing for divorce first when spouses live in different states.
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