We are often asked questions such as “Does it really matter who files first for divorce?” or “What happens if my spouse files first?” No one should be in a race to file their divorce papers, unless their case involves domestic violence, child abuse, or other criminal activity where it may be prudent to seek an emergency restraining order. However, most Louisville divorce cases do not involve these complications. Some clients are worried that their children might hold it against them if they file first for the divorce. “You were the one who broke up our family.” (often after hearing as much from your former spouse).
The party who files first for divorce may gain a measurable advantage when the venue or jurisdiction is in question. For example, if you live in Louisville and your soon-to-be former spouse resides in another county or outside of Kentucky, you gain a measure of advantage by ensuring Louisville’s local Family Court controls the issue of “jurisdiction” in your case. Are you concerned that your ex-spouse will run up the credit cards, take money out of joint bank accounts, or even sell marital assets to raise the funds to leave the area?
Kentucky law requires each spouse to act in the other spouse’s “best interests” in all financial matters. This is known as the “fiduciary duty” under Kentucky law. Spouses owe each other a fiduciary duty from the moment they are married until the divorce is finalized. If one of the parties attempts to hide money, undervalue assets, or otherwise manipulate the process, the Court will ultimately set it right. These wrongful actions often come into play during property division. This can result in financial sanctions against a party that violates its fiduciary duties.
There is a slight advantage for the party who files first for divorce. The individual who initially filed for divorce is known in Kentucky as the “petitioner.” The party served with divorce papers is known as the “respondent” throughout the proceedings. The petitioner can make many requests regarding maintenance (spousal support), child custody and visitation by requesting “temporary orders” as part of their initial divorce petition. If the respondent ignores the filing or fails to provide an “answer” with their own requests, the Court may often simply award the temporary child custody, support, and maintenance requested by the petitioner. This is why it is essential to respond to the service of divorce papers in a comprehensive and timely fashion.
In addition, the petitioner has the opportunity to present their side of the case first in any matter associated with the divorce. Many experienced divorce attorneys believe it is possible for the party going first to gain a small advantage as they are able to “frame the argument” and have the first opportunity to impact the Judge’s thinking. While this may be true in some instances, it is also possible to overplay one’s hand, ultimately leading to a less desirable outcome.
Does it really matter who files first for divorce in Louisville? In most cases, there simply isn’t that much of any genuine advantage to be gained by being the first to file in your divorce. Your divorce requires sound advice and counsel, as well as organization and pre-planning. This is especially true in divorce cases involving substantial assets, large pension or retirement accounts, or the ownership of a professional practice or business. Filing first may or may not be in your best interest. Each case is different and unique. This is why it is important to seek the advice and counsel of the experienced Louisville family law and divorce attorneys at Dodd & Dodd.
We invite you to review the strong recommendations of our former clients and the legal industry and contact Dodd & Dodd or call 502-584-1108 to schedule an appointment with one of our attorneys.Our experienced team will help you prepare for divorce, identify your most important goals and objectives, and develop strategies to protect those interests. It may or may not be important to file first in your case. Let us help answer this question and address all the important concerns on your heart and mind.
