In a California divorce case, there is a petitioner and a respondent. The petitioner is the party who files for the divorce, and the respondent is the party who receives the petition and must respond. If you’re considering a divorce, you’ve likely thought about which side you want to be on – the side filing or receiving. In California, neither party has an advantage. It’s only a matter of who wants to take the first step toward the dissolution of marriage.
California’s No-Fault Divorce Laws
Filing for divorce first would only affect the proceedings if the courts took fault into account when dividing property and assigning spousal support. In some states, the courts will consider fault in these decisions. If one spouse had an affair, received a felony conviction, or otherwise caused the divorce to come about, the courts in fault states might rule less kindly for him or her. California, however, abides by no-fault divorce laws. This means the courts make divorce decisions without looking at who may be at fault for the split.
In a fault state, it might matter who files first. Filing first could be a sign that the petitioner is the “victim,” while the respondent is the one who caused the divorce. This could sway the court’s decisions in terms of property division and alimony payments. Filing first in California does not apply same conditions. The courts are not concerned with who files first, since they don’t care who is at fault for the dissolution. There may still be a few reasons you would want to make the first move when it comes to divorce proceedings.
Reasons to File First in California
Filing first might not affect property division or court decisions, but it could play a factor in other aspects of your life. If you or your spouse currently live in different jurisdictions (separate cities or states), the petitioner has an advantage in that the other party will have to travel to his/her jurisdiction for court proceedings. The person who files first gets to “pick” where the divorce process will take place. The petitioner will also get to retain a divorce attorney nearby, while the respondent will need to hire one in the jurisdiction where the petitioner filed.
If you need temporary court orders during your divorce proceeding, you will want to file first. Being the petitioner can come with temporary child and spousal support orders, as well as rulings such as restraining orders in situations involving domestic violence. If your spouse poses any risk of stealing your assets, hiding assets, or taking off, you may also want to file first. While these instances are rare, they do happen. Filing right away can help you protect assets and prevent them from disappearing. Upon filing, temporary orders automatically go into effect that stop either party from encumbering assets.
Finally, the petitioner will be the party who talks first during divorce hearings and mediations. The petitioner and his/her attorney speak first, followed by the respondent’s reply. If it means a lot to you to speak first during divorce proceedings, you may want to file first. Keep in mind, however, that the respondent has the power to file requests to modify your petition. Filing first does not mean you can completely control the situation. Speak to an attorney for individual advice about when to file for divorce in California.
