Does it Matter Which Spouse Files for Divorce First?

I am frequently asked whether it makes any difference who files first in a Divorce Case.

The legal answer is that it really does not matter. When a Plaintiff files a Complaint for Divorce, the Defendant has the right to file a Counterclaim for Divorce along with their Answer. Thus each party has the right to make a written statement to the Court as to why they want a Divorce.

However, there may sometimes be emotional, psychological or personal reasons that drive one to file first, or to resist filing first. But legally speaking it does not matter. Other than if no one files, there will be no divorce granted.

It does not matter because when the case is finalized the Complaint for Divorce and the Answer/Counterclaim for Divorce become irrelevant. It is the Settlement Agreement or the Court’s Final Order that matters in the end. The Complaint and Counterclaim are what the parties are asking for, which is not necessarily what they get. The Settlement Agreement or the Final Order determines what the parties’ rights are regarding property, debts, alimony and the children.