Does it Matter Who Files for Divorce First?

Are you preparing to get a divorce? If so, it is normal to feel stressed out, overwhelmed, and to have a lot of questions. You may be wondering: Does it matter who files for divorce first in Alabama? The answer is “yes and no”—no because filing for a divorce first does not have any direct impact on key issues like property division and child custody, yes because filing first can impact some procedural issues in your case. At The Harris Firm, LLC, we have deep experience handling family and divorce cases. Within this blog post, our Alabama divorce lawyer explains what does—and does not matter—when it comes to who files for divorce first.

Filing for Divorce First has No Direct Impact On Key Marital Issues

First and foremost, it is important to emphasize: Filing for divorce first does not have a direct impact on any of the family law issues that will be addressed in the case. The complainant—spouse who files for divorce—and the respondent—the spouse who does not file first—technically have equal rights and responsibilities regarding the important family issues. Here are some key points to be aware of regarding the divorce process in Alabama:

  • Property Division: Property division is generally one of the most contentious, complicated issues in property division cases. Alabama is an equitable distribution state. The marital assets of a couple will be split in an equitable “fair” manner. That a spouse filed for divorce first does not give them the right to a greater share of the marital property.
  • Spousal Support (Alimony): In some divorce cases in Alabama, spousal support (alimony) will be awarded to the financially-disadvantaged party. If it is granted at all—and the amount and duration—will depend on case-specific factors. Who filed for divorce first does not directly impact alimony obligations.
  • Child Custody & Visitation: Alabama is a “best interests of the child” jurisdiction. For parents of small children or teenagers, they will need to work out custody and visitation under this standard. The parent who files for divorce first does not get preferred custody rights for visitation rights.
  • Child Support: Alabama has general state guidelines in place for child support. Either a mother or a father could potentially be required to pay child support. That one parent filed for divorce first in Alabama does not directly impact child support obligations. The amount will depend largely on the financial circumstances of the parents.

Why Filing for Divorce First Could Still Potentially Matter

As noted above, filing for divorce first in Alabama does not have a direct impact on any key marital issue. However, that does not mean that the order of filing for divorce is irrelevant. It could still matter—particularly for procedural matters. Here are three key reasons why there could be an advantage associated with filing for divorce first in Alabama:

  • Venue to Hear Divorce: Under Alabama law (Ala. Code § 30-2-5), there is a six month residency requirement. Either you or your spouse must have lived in the state for six months to be eligible to file for divorce. You should file in your county of residence or your spouse’s county of residence (if different). Filing first allows the petitioner to choose the venue where the divorce will be heard—and it can be a significant advantage. By choosing the venue, the filing spouse can select a court that is more convenient geographically or perceived to be more favorable based on historical rulings or the speed of processing cases.
  • Timing of the Process: When you file for divorce first, you have some control over the timing of the process. The spouse who files first can somewhat control the timing of the divorce proceedings. Along with other things, this includes preparing financially and emotionally for the divorce before the other spouse is aware that proceedings will be initiated. Having control over the timing allows the filing spouse to gather necessary documents, secure legal representation, and strategically plan their case without the immediate pressures that come once the divorce process is underway.
  • Order of Presentation: The order of presentation in a divorce case could make a difference—particularly so if you are in a high-conflict dispute with your spouse. Filing first in a divorce case can also influence the order in which parties present their cases in court. The petitioner typically presents their case first if there is a trial. That could be a tactical advantage. Presenting first allows the filing spouse to set the tone for the proceedings and make a first impression on the judge. It can leave a lasting impact.

Rushing to File First Might Be a Mistake—Uncontested Divorce Settlement Possible

Rushing to file for divorce first without considering the possibility of an uncontested divorce can be a strategic mistake. You do not want to rush through the process simply for the sake of filing first. An uncontested divorce—where both parties agree on all terms—will often result in a quicker, less expensive, and less contentious process. Taking the time to discuss and potentially agree on the terms of the divorce before filing can lead to a more amicable resolution and preserve a better relationship post-divorce. It is also best to weigh the benefits of filing first against the potential advantage of negotiating a mutually agreeable settlement that simplifies the entire process.

How Long Does Divorce Typically to Finalize Take After You File in Alabama?

It depends. Indeed, the duration of the divorce process in Alabama can vary dramatically based on case-driven issues. For uncontested divorces the process can be relatively quick. Alabama has one of the shortest “waiting periods” for divorce in the entire country. It is only 30 days. If you file for divorce and you have already reached a settlement on the day of your filing—meaning you file the settlement agreement with your initial divorce petition—you and your spouse could potentially get a finalized divorce in as little as one month. Though, it is not uncommon for no-fault, uncontested divorce cases to take 60 days or 90 days. On the other hand, contested divorce litigation has the potential to take far longer. If you file for divorce without your spouse, there are many procedural requirements. You will have to serve divorce papers on them—and they will have an opportunity to “answer” the divorce petition—before the process can move forward.

A Summary On Filing for Divorce First in Alabama:

There is no direct advantage of key family law issues—property division, child custody, etc—for filing for divorce first. However, the spouse that files for divorce first can assert some procedural control over the process, including determining which county in Alabama has jurisdiction over the divorce. That may or may not be a useful benefit in your case. Rushing to file first is usually a mistake. While you may want to be the one that files first, you should always be sure that you are ready to do so. Before filing for divorce, you should consider your options for negotiating a settlement and you should ensure that your initial divorce complaint (petition) is properly drafted. An attorney can help.

Speak to Our Divorce Attorney in Alabama Today

At The Harris Firm, LLC, our Alabama divorce lawyer invests the time and resources to help clients get results. If you have any questions about filing for divorce, we are here as a resource that you can trust. Give us a call at (205) 201-1789 or send us a message online to set up your confidential initial appointment. Our family law firm provides statewide divorce representation in Alabama, including in Montgomery, Birmingham, Huntsville, and Mobile.

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