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Is There an Advantage to Filing for Divorce First in Florida?

David Scott, P.A. Aug. 20, 2022

If you are considering filing for divorce, it may seem like the preparation is as much of a hassle as actually going through the divorce proceedings.

Every divorce “expert” (or friend who has been through a divorce) may offer a different piece of advice or cautionary tale about how to prepare yourself, your children, and your finances, for the months ahead. Some of these pieces of advice may come from personal experience, but others may come from myth – or even legal advice that doesn’t apply to Florida law!

Let’s look at one pre-divorce issue that has been the subject of frequent debate. It concerns who files for divorce first, and what benefits they may (or may not) get from doing so.

In some cases, filing first can make a difference during divorce proceedings, and put the person who filed first (called the “petitioner”) at an advantage. In other cases, it doesn’t really matter. This blog post will look further into what happens when someone files first, why it could be seen as an advantage, and what will be best for your situation.

Why File First?

Many people who file first want to have the upper hand in how finances are handled, and what law will preside over the divorce proceedings. By knowing when the divorce will be filed, the petitioner will have a clearer understanding of the timeline of the divorce.

Restraining orders can also be put on spouses who may move around finances or assets after the divorce has been filed. Your ex will not be able to hide anything if he or she is caught off guard with divorce papers. They will also have less time to contact a lawyer and prepare their case, giving you an advantage once you are negotiating a settlement or heading to court.

The individual who files first will also have the chance to take out a temporary restraining order on their ex first. If you believe that you are in danger of violence or threats, we recommend calling an attorney and starting the process of taking out a restraining order immediately.

Another reason that some people decide to file first is because they are worried that their spouse won’t agree to the divorce or that they are putting off filing. Any individual spouse can file for divorce in Florida, so you do not have to wait for them to file to get the process moving.

How Does Florida Look at This Issue?

Florida state law regarding who files first is structured so that judges will make their decisions based on what is fair to both spouses. The speed at which someone files for divorce does not make the petitioner more or less deserving of their well-earned assets, so who files first really has little impact on a judge’s final decisions.

Florida is also a “no-fault” state. So the reason a spouse files for divorce first will also have little impact on the final decisions (unless the spouse believes he or she is in immediate danger of violence).

When It’s Important to Be Prepared and File for Divorce First

  • You Have a Specific Court in Mind: Say you are separated from your ex and they live in a different state. If you file for divorce first, the proceedings will go by Florida law and you can get a local attorney to help you through the process. An attorney may also be able to give more specific information about where to file based on their knowledge of the judges and previous divorce decisions.

  • Your Ex Has More Control Over Your Assets: If you have less control over your assets, you will be put at a disadvantage once you enter the courtroom. Plus, if you wait until your ex is ready to file for divorce, some of the assets or property that you believe you have a right to may have already been transferred into your ex’s name. Filing for divorce will freeze both parties’ assets and prevent your ex from making any big moves that will negatively affect your divorce settlement.

  • You Just Want To Get the Divorce Over With: Once the divorce is filed, you and your ex will have to meet certain deadlines and will be tied to a specific timeline for sorting out your finances. Our last blog post dealt with this issue of how long it typically takes for divorce proceedings to be completed. Simply put, the sooner you file, the sooner it will all be over.

Ready to start arranging your finances and file for divorce? Talk to a Florida family lawyer to get the ball rolling.