Is it Better to be the One that Files for Divorce or Does it Even Matter

Is it better to be the one that files for the divorce, or does it even matter? When two parties decide that they want to divorce, they will have to obtain a court order granting their divorce in order to officially dissolve their marriage and legally be considered single. To get this court order, one of the parties must file for divorce. This means that one party will need to hire a local attorney to assist with drafting and filing a Petition for Divorce with the Circuit Court. Then, they will need to have the other party served with notice of the divorce proceeding. Does it matter which party files for divorce? It can, depending on the circumstances.  Better to File for Divorce First

In divorce proceedings, the Plaintiff, or the party filing for divorce, is not given any extra preference or rights regarding the outcome of the divorce over the other party, the Defendant. However, the Plaintiff does get to choose where they want to file their Divorce Petition. This is true regardless of which party ends up being the Plaintiff. To file for divorce in Alabama, one of the parties must reside in the state for six consecutive months leading up to the filing, and they must continue to reside in Alabama at the time they file for divorce. Alabama divorces are handled by courts that are divided by county, so if the residency requirement is met, then the Plaintiff can essentially choose any county in the state to file their Divorce Petition. Also, if one party lives out of state and files there first, then that state might be the one the divorce takes place in. So filing first can make a difference when both parties live in different counties and/or states.

While the Plaintiff may be able to file for divorce in whichever county they choose, it is often not very realistic. Depending on the type of divorce, divorces can proceed for months or even years before they get finalized. If it is an online uncontested divorce, then it may not matter since there will be no court.  It would be inconvenient if the Plaintiff chose a county that was on the opposite side of the state. The parties would have to travel to that county each time that they have to appear in court. This could make the divorce even more expensive because they may have to pay for transportation and lodging for themselves and their Birmingham or Alabaster divorce attorneys depending on which county the Plaintiff chose. Because of this, Plaintiffs will generally file for divorce in the county court where they or their spouse live. If the spouse is a resident of another state, then the Plaintiff may file in their own county or in the county of the other state where their spouse lives.

Besides choosing the county that will have jurisdiction over the divorce proceeding, there is not really a difference in which party is the one to file. The judge will hear arguments from both parties, and the judge will consider all of the relevant information without favoring one party over the other. The party that does not file, the Defendant, will not be viewed as if they are automatically at fault. The judge will come to an unbiased decision that is justified by the evidence presented by both parties. So, if you and your spouse are wanting to divorce, either of you can file for the divorce. If you are not sure what county you should file in, contact us today for a consultation with one of our experienced Birmingham divorce attorneys.

Quick Contact

Choose from the office locations above for contact details



Fill Out a Questionnaire

Get started


Make Payment