Does It Matter Who Files for Divorce First?

• June 2, 2022
• CLLB Law
• Divorce

Indiana is a “no-fault” state, which means that you do not have to make any allegations against your spouse to file for divorce. When you file a Petition for Dissolution of Marriage, you only have to state that the marriage is irretrievably broken. Thus, on the surface, it does not matter who files for divorce first. Even when both spouses want to divorce, it can be a scary time as you are embarking on a new chapter of life. And, you have several unknowns ahead of you, such as how long the divorce process takes, whether your spouse will argue over division of property, visitation, and support, and other factors you now have to deal with.

Our divorce lawyers can help you through the entire process, whether you and your spouse agree on everything and want to file an uncontested divorce or you need to go to court to determine the division of assets, visitation and support. There is an element of your divorce proceedings in which it does matter who files for divorce first, and that is getting a jump on securing the best representation possible. If you act before your spouse, you’ll be in a better position in advance of filing because your attorney will inform you of all your options and explain each step in the process. You can make more informed decisions when you have divorce lawyer from the start.

Uncontested Divorce

If you and your spouse agree on everything, you can file for an uncontested divorce. Even in this situation, you may wonder if it is better to file for divorce first. While your divorce may be amicable, you can be better prepared if you get help from an attorney right from the start. So, if you choose to file first, or at the very least, to speak with a divorce attorney first, you can better protect your interests.

In an uncontested divorce, you still have to go through the court process, but the time it takes is much shorter. Our divorce attorneys will help you draft a marital settlement agreement that you both review and sign. The settlement agreement includes the division of assets and liabilities, a time-sharing agreement for spending time with the children, and child and spousal support information.

Once you sign the marital settlement agreement, it will be filed with the court for approval. If the judge agrees that the settlement agreement is fair and in the best interests of the children, he or she will grant a final judgment of dissolution of marriage.

Drafting and reviewing a marital settlement agreement and obtaining the court’s approval could take as little as 60 days, depending on the court’s schedule.

Contested Divorce

A divorce is contested when one person does not want to divorce, or both want to divorce but cannot agree on the division of assets, time-sharing with the children, and whether one spouse should pay spousal support.

If you file a contested divorce, it still does not matter who files first, though the filer is usually the person who pays the court filing fees. This process could take 60 days or longer, depending on how many court hearings you have before the final hearing. Just as is the case in an amicable divorce, you may find you are in a better legal position to be the first to act, so it can make a difference who files for divorce first, simply from a strategic point of view.

Filing for Divorce and Court Hearings

Generally, when two people cannot agree on something, they ask for court intervention. For example, if you want to spend 50 percent of the time with your child, but your spouse refuses to let you see the child, you might file a motion in the court to ask for time-sharing rights.

In some cases, one spouse might “waste” assets – try to sell or give away assets to spite the other spouse. The “injured” spouse might file a motion with the court to ask the court to put a hold on spending joint money or selling joint assets.

In other cases, one spouse might not have worked for many years because he or she was home taking care of the children. That spouse would not be able to survive on his or her own without financial help from the other spouse. The non-working spouse might ask the court for temporary spousal support.

It takes time to draft the requests to the court and to schedule a court hearing. Not only does the court have to have a slot open, but both spouses’ divorce attorneys must also be free to attend the hearing on the date the court has open.

Once mandatory disclosure/discovery has been completed, the attorneys can schedule a final hearing with the court. Final hearings could take as little as an hour or as long as several days, depending on the circumstances of the parties. In some cases, the parties are able to agree on some things, but not all, so the court hearing takes less time since the court does not have to hear and rule on the issues you agreed upon.

What to Consider As You Decide if It’s Better to File for Divorce First

Divorce is a complex process, even when there are no children involved. At the very least, there will be assets and debts to divide and perhaps you’ll need to come to an agreement related to spousal support. As you debate whether you should file for divorce first, consider that you may have a stronger position if you do. You can be more informed about the process and about your options in how agreements are structured if you obtain an attorney who can help you file for divorce first.

Here are some core elements of divorce agreements that can be involved in your case.

Child Support

Both parties must provide all financial information to each other through their attorneys. They must also complete a financial disclosure statement. The court uses the disclosures to determine how much child support the children are entitled to. Child support is not an arbitrary number the court pulls out of the air – the state statutes provide a formula that bases child support for each spouse on his or her income. Child support is used for providing housing, clothing, medical care, schooling, activities and more for the child.

The Indiana Statutes also include concessions for health insurance and daycare for the children and uses the same percentages to determine how much each spouse pays. Child support is not an “equal” amount that both spouses contribute to. It is an equitable amount based on income that is usually forwarded to the spouse who has the bulk of the time-sharing.

Spousal Support

If you are asking for spousal support, it does not matter who files for divorce first. The court looks at several factors when determining spousal support, including the length of the marriage, the income of the spouses, and the behavior of the spouses months before the divorce and during the pendency of the divorce.

Division of Property

Indiana is an equitable distribution state. This means that neither spouse is automatically entitled to half. Instead, the court begins with a presumption that a 50/50 split is fair, but looks at the current and future earning capacity of both spouses, non-marital assets, spousal support, and other factors to determine if another percentage is more equitable.

If You Wonder If It Matters Who Files for Divorce First, Ask Us

If you are ready to file for divorce or if your spouse filed for divorce, contact our New Albany divorce attorneys at CLLB Law by calling (812) 725-8224 to schedule a consultation. We can discuss all the elements of your divorce and why it may be best for you to file for divorce first. Give us a call to learn about your next steps.