Does It Matter Who Files for Divorce First?

The state of Michigan observes no-fault divorce, which means you don’t need a reason to seek and obtain a divorce. That said, you may naturally wonder whether there’s any advantage to being the person who files for divorce.

You are unlikely to gain any significant advantage in cases of relatively amicable divorce proceedings. However, if your spouse is against the divorce, or if you expect to wind up in court with a contentious separation on your hands, you may want to file first for a few reasons. Here’s what you could gain by filing before your spouse.

Ex Parte Orders

If you are the one to file for a divorce first, you have an opportunity to petition the court for temporary ex parte orders before your spouse is even notified that you’ve filed. You need to understand that these orders are reserved for emergency situations. They are designed to protect against an immediate threat of harm.

Ex parte orders are often applied to children or financial assets — or, more specifically, to the harm or damage your spouse may cause upon learning that you have filed for divorce. However, you must prove that failure to receive such an order would result in irreparable harm or that giving notice to the party would cause them to do harm. This can be difficult to achieve and is reserved for extreme cases.

Petitioner vs. Respondent

When you file for divorce, you become the petitioner and your spouse the respondent. This is only really important if you go to court because the petitioner is the first to present their case.

This means you can not only present evidence but also call witnesses. The benefit here is that you can call your spouse, the respondent, as your first witness, compelling testimony that is on record before you present other evidence or witnesses. This allows you to stop your spouse from adjusting their testimony based on other witness statements or evidence presented.

Jurisdiction

If you and your spouse live in the same county, it won’t matter who files for divorce. If, however, you are separated and you live in another county in Michigan, or your spouse is in another state, filing first means you set the jurisdiction that is most convenient for you. In turn, your spouse will have to travel to your location for hearings. Before filing, you must be a Michigan resident for a minimum of six months and reside in the county where you file for at least 10 days.

Division of Assets

In addition to being a no-fault divorce state, Michigan observes the fair and equitable division of assets. However, suppose that one party is deemed to be at fault for the divorce or that fraud is involved. In such cases, the court has some wiggle room to alter the even split of assets in a way it deems to be fair. Again, filing first means you get to present your evidence first in court, so this could be to your benefit.

If you’re facing a contentious divorce and court battle, you need the services of a qualified family attorney to represent your best interests. Contact the professionals at The Gucciardo Law Firm today to schedule your free initial consultation.