A common idea is that divorce is a race to the courthouse.
Many people think whoever files first gets the upper hand. They have a better chance of getting what they want. Maybe the judge will even see them as the spouse who was “right.” So, if your spouse files before you do, it is easy to feel like you are already behind.
Luckily, there is no gold medal for making it to the courthouse first.
Filing first makes one spouse the petitioner and the other the respondent, but it doesn’t automatically give either person an advantage when it comes to property, parenting time, support, or the outcome of the divorce.
So, what does filing first actually change?
What Does It Mean to File First?
Every Florida divorce has to start somewhere.
One spouse files a petition for dissolution of marriage with the court. That person becomes the petitioner, while the other spouse becomes the respondent. The petition begins the case and lays out what the filing spouse is asking the court to address. The respondent is then served and allowed to respond.
That is essentially what filing first means: you started the paperwork.
The titles may make it sound like the petitioner is in the driver's seat while the respondent is merely along for the ride, but that is not how the rest of the divorce has to play out.
Myth: Filing First Means You Have the Upper Hand
Let's get the big one out of the way.
Your spouse filing first does not automatically mean they get the house, more marital property, more time with your children, or a better financial outcome.
Florida courts generally begin with the premise that marital assets and liabilities should be divided equally, although the circumstances of a particular case can justify an unequal distribution. Who submitted the first piece of paperwork is not what determines that division. The same basic idea applies to decisions involving children. Parenting arrangements are not a prize awarded to whichever parent filed first.
Florida is also a no-fault divorce state. Generally, a spouse does not have to prove the other person caused the marriage to fail; rather, a marriage can be dissolved because it is irretrievably broken.
So, if your spouse beat you to filing by a week, don't panic. They did not call dibs on the divorce.
Are There Any Benefits to Filing First?
There can be. They are just much more practical than dramatic.
A spouse who plans to file may have an opportunity to speak with an attorney, organize financial records, gather important documents, and prepare before formally beginning the case. They also get to choose when to initiate the divorce rather than being surprised by a knock at the door. Depending on the circumstances, filing the case may also allow a
spouse to begin asking the court for temporary relief while the divorce is pending.
Those things can certainly matter, but there is a difference between having time to prepare and having the court on your side.
The biggest advantage of filing first may simply be knowing the papers are coming because you are the one who filed them.
My Spouse Already Filed. What Do I Do Now?
First: don't race them to the courthouse with another divorce petition just because they got there before you. Instead, pay attention to the case that has already been filed.
Under Florida's Family Law Rules of Procedure, a respondent generally has 20 days after being served with the original process and initial pleading to file a response, although different circumstances can affect deadlines.
Read the documents carefully and figure out exactly what your spouse is requesting. Start gathering financial records and other information that may be relevant to the case. Most importantly, do not toss the papers into a drawer and hope the problem sorts itself out.
Legal paperwork is unfortunately not known for taking the hint.
If you do not understand what you received or how you should respond, consider speaking with a Florida family law attorney.
What If I Disagree with the Petition?
You probably will not read every sentence of your spouse's petition and think, “Wow, they really nailed it.”
Maybe they are asking for something you never agreed to. Maybe you disagree with how they described your finances or what they are proposing for your children.
That is exactly why you have an opportunity to respond. A request in a petition is not a decision from the judge. The respondent can answer the allegations in the petition and, depending on the circumstances, may also file a counterpetition asking the court for relief of their own.
Being called the “respondent” does not mean your only job is to sit quietly while your spouse decides what happens next.
They Filed First. Now What?
If your spouse filed for divorce before you did, they may have chosen when the process started. They did not choose how it ends.
If you are thinking about divorce in Florida, we can help you find out whether we are the right fit. Call us at 850-362-7228, or complete the form on our website and we will call you.
Written by Sophia Thephasdin. Reviewed for legal accuracy by Matthew Ausley, Attorney.