Family law attorneys are frequently asked if there is an advantage to filing first. Whether it is for divorce, support or child custody, the answer is both yes, there is an advantage, and no, there is no advantage to filing your complaint first.
The answer is “no,” because the allegations you raise, claims for relief and evidence you submit will be reviewed impartially by the court – regardless of whether you file first. No court will favor your submissions simply because you filed them before your spouse or ex-spouse.
However, the answer is “yes” for two important reasons: (1) filing first means you can set the pace of the litigation, and (2) you get to speak first and last in the event your case proceeds to trial.
Setting the Pace of Litigation
Filing your Complaint first means you have some element of control over the timing of litigation and/or settlement. You may be eager to settle and want to demonstrate this to your spouse. Or maybe you are uninterested in compromising and want to go to trial. You may also want to show your spouse that you are serious but willing to negotiate. By filing first, you are able to put the mechanisms of the legal system (i.e. the ability to file motions and request discovery, etc.) at your disposal first and set the pace of litigation.
Presenting Your Case
Aside from setting the initial pace of litigation, by filing first, you will get to present your case to the court first and last in the event of trial. As the Plaintiff (person who filed first), you will present your case, then your spouse (the Defendant) will present his/her case, and then you will have the opportunity to present rebuttal witnesses and evidence. This means that as the Plaintiff, you will get to speak twice. Practically speaking, this also means you and your attorney will be on the offensive—not defensive—if you file first.
Whether or not you file first, the most important thing you can do is speak with a family law attorney early. Your attorney will ensure you know your rights, options, remedies, and the best course of action for moving forward with your divorce, support, or custody case. This will enable you to take proactive steps, such as:
• Information Gathering: Collecting the necessary information and documentation to proceed with your case including, but not limited to, bank account statements, debts, properties you and your spouse own, past and present household income, other income received, etc.
• Preventing Marital Waste: If your spouse has the ability to drain or hide assets, an experienced attorney can help prevent your spouse from engaging in such activity and protecting your share of the marital assets.
• Preserving Your Fault-Base: If your divorce, support, or custody Complaint is based on the fault of your spouse or ex-spouse (adultery, abandonment, etc.), your attorney can help you preserve these grounds and let you know the defense(s) your spouse may raise.
As you can see, there are some significant benefits to filing your Complaint first. At the very least, you should engage the help of a family law lawyer early so that you can protect your assets and ensure you are prepared for court. If you are considering divorce or filing a support or custody suit, the qualified family law attorneys at DiPietro Law Group are here to help you. Call us today at (888) 530-4374.