To File or Not to File: Weighing the Pros and Cons of Filing for Divorce First

disadvantages of filing for divorce first

When a marriage reaches its breaking point, and divorce seems like the only option, you may wonder whether it matters who files for divorce first.

The decision to end a marriage is never easy, and the divorce process can be emotionally and financially draining.

In New Jersey, understanding the implications of filing for divorce first helps you make better decisions and protects your interests.

What Does it Mean When You File First?

When you file for divorce first, you become the petitioner and initiate the dissolution legal process after submitting your complaint to the court.

Your spouse becomes the respondent and has the opportunity to answer the complaint once properly served. Petitioners set the tone for the divorce proceedings and may have some strategic advantages, but there are also potential disadvantages to consider.

Disadvantages of Filing for Divorce First

While filing for divorce first may seem like a proactive step, you should consider the potential drawbacks before making this decision. Let’s explore some disadvantages you might face when initiating the divorce process.

Increased Legal Costs

One of the main drawbacks of filing for divorce first is the associated legal costs. Because you’re the initiating party, you will be responsible for paying the filing fees, which can add up quickly. Additionally, you may incur higher attorney fees as your divorce lawyer prepares and files the necessary paperwork.

Emotional Toll

Being the one to file for divorce can take a significant emotional toll. You may feel guilty or anxious about ending the marriage and have to deal with potential backlash from your spouse. Have a strong support system in place and prioritize your mental health during this challenging time.

Strategic Disadvantages

When filing for divorce, you reveal your intentions to your spouse first, which may give the respondent time to prepare a counterattack. Your spouse may also attempt to hide assets, drain joint accounts, or take other actions that could put you at a disadvantage.

Working with an experienced divorce attorney can help you anticipate and mitigate these risks.

Advantages of Filing First

On the other hand, filing for divorce first offers some strategic advantages. The initiating party sets the tone for the proceedings and may present the case favorably.

Let’s look at the benefits that work in your favor.

Setting the Tone

Filing for divorce lets you frame the narrative in court. You can set the tone for the proceedings and highlight the issues that are most important to you. This presentation can be particularly advantageous if you have solid grounds for divorce or anticipate a contentious process.

Choosing Jurisdiction

In some cases, you can choose the jurisdiction for the case when filing for divorce first. If you and your spouse live in different states, the state where you file can significantly impact the outcome. An experienced family law attorney can help you assess your options and determine the best action.

Protecting Your Assets

Finally, petitioners can take steps to protect their assets and ensure fair divisions of property. A family court pretrial order can restrain your spouse from hiding or dissipating marital assets. Work with your New Jersey divorce attorney to develop a strategy for securing your property.

Factors to Consider Before Initiating Divorce

You must evaluate your unique family situation and carefully consider several key factors before filing for divorce.

The following circumstances may significantly impact the course of your divorce proceedings and the outcome of your case.

Grounds for Divorce

You can file for divorce in New Jersey on no-fault or fault-based grounds.

No-fault divorce options include irreconcilable differences and separation, while fault-based grounds include adultery, abandonment, and extreme cruelty.

Your choice of grounds may draw out the divorce process, provoke higher legal fees and expenses, and affect the judge’s final decision.

Child Custody and Support

Filing for divorce first may also affect custody arrangements and child support obligations. The court will always prioritize the children’s best interests. So, you must consider their well-being and how adversarial divorce proceedings will affect them before petitioning the courts.

Likelihood of a Contested Divorce

Also, assess the likelihood of a contested process. If you anticipate that your spouse will react negatively to being served divorce papers, preparing for a lengthy and complex divorce may be wise. Work with a skilled family lawyer to help you tackle this challenge and protect your family’s rights.

Considering Mediation or Collaborative Divorce

Mediation and collaborative divorce are alternative dispute-resolution methods to help couples resolve their differences and reach agreements outside the traditional court setting.

In mediation, a neutral third party facilitates discussions between you and your spouse, helping you communicate effectively and find mutually beneficial solutions.

Collaborative divorce involves parties and their attorneys working together in a series of meetings to negotiate the divorce terms, with a shared commitment to avoiding litigation.

These processes often result in more amicable, cost-effective, and time-efficient outcomes compared to a contentious court battle while providing greater privacy and control over the final settlement.

Seek Divorce Attorney Counsel to Make Informed Choices

Deciding whether to file for divorce first is a complex personal choice that requires careful consideration.

While there are potential advantages to being the petitioning party, such as setting the tone for the proceedings and protecting your assets, there are also drawbacks, including increased legal costs and emotional stress.

Ultimately, the best way to make an informed decision is to seek the guidance of a New Jersey family law attorney.

Netsquire offers confidential case evaluations to help you understand your options and develop a strategy that aligns with your goals. Our experienced family law firm will be by your side every step of the way, providing the support you need to approach this challenging time.

Contact us today and take the first step toward making better decisions.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

LinkedIn | State Bar Association | Avvo | Google