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

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

In Texas divorce cases, it does not matter who files first. In other words, it does not make a big difference who is the "petitioner" (i.e. the person who files first) or who is the "respondent" (i.e. the person who responds to the divorce petition). 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.

How the Judge Divides the Property

Since Texas is a community property state, the judge only has to divide the property.

The judge decides when the property was acquired and by whom, and who should get the property upon divorce. This involves the credibility of testimony, direct evidence such as a receipt, and other circumstantial evidence surrounding the case. Therefore, it does not make much of a difference to an experienced trial judge whether one spouse gets to explain his or her version of the story first.

Advantages of Filing First

Even so, there may be some advantages in filing for divorce first in the District Court of the Texas county where the petitioner resides if the respondent lives in another county. Moreover, the petitioner may be able to gauge their lawsuit to get a certain judge to hear the case. 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 the 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. Thus, a person who may be denied custody in other states (with a higher age requirement) due to irresponsibility 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 (i.e. with the intent of living in Texas forever), as opposed to regular Texas resident. In summary, there may be advantages to filing for divorce first when spouses live in different states.

Consulting an Attorney

An experienced family law attorney can help you through your divorce. She can help divide your community property fairly, determine the proper child support and spousal support amounts, and set aside the community debt.

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Last Modified: 02-28-2014 12:33 PM PST

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