Does It Matter Who Files for Divorce First in Texas?

Divorce is rarely simple. It’s often filled with emotion, uncertainty, and complex decisions. One of the first questions many Texans ask is, does it matter who files for divorce first? While Texas law doesn’t favor the filing spouse, there are practical pros and cons to consider. This article addresses the nuances of this question. It also provides valuable information if you are facing this decision in Texas.

Grounds for Divorce in Texas

Texas offers both no-fault and fault-based divorce. No-fault means the marriage is ending due to irreconcilable differences.

Fault-based divorces cite specific reasons like adultery or domestic violence. Fault rarely impacts property division, which is governed by community property laws. However, it can be relevant in cases involving spousal maintenance (especially in marriages lasting 10+ years) and child custody. Presenting these grounds initially can be advantageous if they are pertinent to your case.

Here’s a summary of the grounds for divorce in Texas and residency requirements:

Texas Residency Requirement: You must reside in Texas for six months and in the specific county for 90 days before filing. A spouse may file a collaborative divorce or a divorce involving other considerations such as grandparents’ rights.

Legal Grounds:

• Insupportability (no-fault).
• Adultery.
• Cruelty or domestic violence.
• Abandonment.
• Living apart.
• Confinement in a mental hospital.
• Felony conviction.

Fault can influence spousal maintenance and child custody case, according to Texas Family Code § 8.052 and § 153.002, respectively. Hiring an experienced family law attorney in San Antonio or other parts of Texas can help determine the appropriate legal strategy based on the unique circumstances surrounding your divorce.

While It Might Not Seem Like It, Sometimes Filing First Can Make A Difference

Texas law doesn’t favor the filing spouse. Yet, there are strategic advantages to consider. These advantages aren’t about “winning.” They offer a chance to prepare and navigate the initial procedures.

The Advantage of Venue Selection

The petitioner chooses the county for the divorce proceedings. Texas law requires residency for at least 90 days in that county. If you and your spouse live in different counties, filing first lets you choose better court location. This may be closer to your support network and reduce travel time and costs. It is especially important for those with children.

Imagine that you have moved to a different county and want to avoid traveling back to your spouse’s county for court trials. Filing first can give you this control.

Setting the Pace: Controlling the Timeline

Filing first lets you set the initial pace. You control when paperwork is filed and start the 60-day waiting period. This time allows you to:

• Organize financials
• Consult an experienced divorce attorney
• Mentally prepare

Being served with divorce papers can be jarring. Initiating the process yourself offers more control and reduces stress.

Setting the Narrative

Filing first lets you present your side of the story in the initial divorce petition. Even though Texas is a no-fault divorce state, how you frame the reasons for divorce can impact negotiations. For example, including desires about financial outcomes can be included in the initial petition. The Texas court can award spousal support after a marriage lasting at least ten years (per Texas Family Code Section 8.052). Hence, it can be beneficial to have included this request in the first petition filed.

Presenting Your Case First: Does It Matter?

Filing first often lets the petitioner speak to the judge first. You present your requests and explain why divorce is necessary. This doesn’t guarantee a win, as judges review all facts. Still, it allows you to frame the narrative. It is particularly helpful in complex divorces, or ones that involve child visitation and support. It can also be helpful for the division of marital property, especially in high net worth divorce cases. Working with a Texas divorce lawyer during the process is especially important if marital asset or parental rights are in question.

Protecting Your Interests: Temporary Orders in Texas Divorces

Temporary order, including temporary injunction, can address crucial matters like finances, property, and children. Anyone can request these, but filing them with the initial petition can offer immediate protection. This can be especially critical if there are concerns about one spouse hiding assets or spousal support and child custody issues.

These orders can prevent the transfer or depletion of accounts, offering immediate protection during the divorce process. Experienced divorce lawyers often advise clients seeking more than just basic legal advice to discuss requesting temporary orders when appropriate.

Considering Your Options

Factor	Filing First	Filing Second
Venue	Petitioner chooses.	Respondent accepts petitioner’s choice.
Timing	Petitioner controls the start.	Respondent reacts to the petitioner’s actions.
Preparation	More time to gather documents and consult attorneys.	Less time to prepare.
Financial	Responsible for initial filing fees and costs associated with service of process. Filing fee ranges between locations and may vary if the spouse uses a private process server as well.	Avoids initial filing costs and other potential advantages.

Does It Matter Who Files First in Texas: Considering the Drawbacks

Filing first in Texas also has potential drawbacks. Considering these aspects is important before making a decision.

Financial Responsibility

The petitioner is responsible for filing fees and serving divorce papers on their spouse. The filing fees are usually around $300. Process servers can perform the service of process or it can be completed by law enforcement. This slight procedural advantage of the petitioner controlling when to submit their paperwork does carry some financial responsibilities. Filing for divorce first means being the spouse who has to handle the initial expenses of initiating divorce.

Emotional Toll

Officially starting the divorce process can be emotionally taxing. While filing for divorce may legally seem straightforward, taking that step impacts your emotions. This is a major life change and taking the lead can involve heightened feelings.

This could lead to more emotional turmoil compared to your spouse. This may also impact your relationships with others throughout this difficult transition, depending on whether amicable discussion about ending the marriage may have instead prevented legal filings for divorce from ever becoming necessary, or had not already taken place at length before legal paperwork to initiate divorce began to proceed. Filing first has significant potential to cause lasting emotional damage for both the filing and non-filing spouse, including in situations of transferring property.

Potential for Increased Conflict

Sometimes, filing first can increase tension, particularly if discussions about an amicable resolution were underway. Starting divorce proceedings might hinder chances of reaching an agreement outside of court, so attempting a more amicable divorce or exploring selling marital assets with mutual consent could instead offer alternative solutions worth exploring if those strategies have not already taken place before initiating a formal divorce court filing through the family court judicial system that addresses state-regulated processes related to separation petitions under laws regulating the process that legally ends Texas marriages when an established relationship is dissolving.

Navigating the Decision: When to File or Wait

Deciding when to file depends on individual circumstances. Factors like finances, children’s well-being (Section 153.002), abuse concerns, potential neglect, property disputes, and spousal addiction should be considered.

What if Your Spouse Files First?

If your spouse initiates the process, receiving the divorce papers can trigger a variety of feelings—perhaps anxiety, anger, or a sense of loss of control. Here are a few pointers for managing those first moments and understanding your options:

Don’t Panic, and Make Sure You Respond Promptly

If you find yourself on the receiving end of divorce papers, don’t panic. The Texas court system aims for balance, giving you opportunities to present your case and protect your interests. Time is critical once you’ve been served with papers. In Texas, you generally have only 20 days to file an answer with the court, so acting quickly ensures your voice is heard and your legal rights are secured.

Knowledgeable Counsel Is Key

Seek the advice of a trusted divorce lawyer or consult a law library to ensure your legal rights are protected throughout the process. An attorney can explain the legal implications of every document and the possible consequences of each choice you make during the divorce proceedings. It is vital to comprehend every step involved. This knowledge equips you to make informed decisions that align with your personal circumstances. To navigate this challenging terrain successfully, seek advice from a family law attorney as soon as possible.

What if Both Spouses Want to File?

There’s another path in a Texas divorce that some find more peaceful: a joint petition. You and your spouse may choose this simple option in case of uncontested divorces, meaning you agree on major aspects like child custody, property division, and other terms. You collaboratively file the petition, signaling to the court your mutual desire to end the marriage. The filing spouse files the petition with the court and handles the necessary steps, such as notifying their spouse.

FAQs about Does It Matter Who Files for Divorce First in Texas

FAQ 1: Is it better to be the petitioner in a divorce?

Not always. Texas is a no-fault divorce state. Filing first doesn’t automatically grant advantages regarding property division or child custody. It primarily affects venue selection and preparation time, so you can discuss matters with your divorce attorney such as postnuptial agreements, prenuptial agreements, and custody property division.

FAQ 2: What are the disadvantages of filing for divorce first in Texas?

The main disadvantage is financial. The petitioner pays initial filing and service fees.

FAQ 3: Do both parties have to agree to a divorce in Texas?

No. Only one party needs to want a divorce. If both parties agree, filing the petition simply formalizes the process. In amicable, agreed-upon divorces, who files first is often less consequential.

FAQ 4: Who files the final divorce decree in Texas?

Either party can file the final decree after the 60-day waiting period. In simple, amicable divorces, the initial filer might handle this step, but it’s not required. An experienced Texas divorce law attorney can explain this process and guide clients throughout the divorce. They can also request temporary orders when needed.

Conclusion

Does it matter who files for divorce first in Texas? When it comes to property division and child custody, the person who files first doesn’t have much legal advantage. However, filing first gives greater control over the process. This can help with preparation and reduce stress.

The legal impact of who files first is minimal, but the practical and emotional differences can be large. It’s crucial to get advice from Texas family law attorneys who are experienced with these cases, as they can address unique issues like child support and custody arrangements.

I gathered this information from several sources. One was Bryan Fagan’s bio, which explained how financial support is determined in marriages lasting 10 years or more. Attorney Turner Thornton’s YouTube video shared insights into Texas divorce procedures and logistics. These resources taught me that “fault” and who files first have little impact on property division or support decisions. Location and preparation are more important.

Take this information into account and consult with a family law firm. A skilled legal team, including experienced divorce attorneys, child custody lawyer or a Texas family lawyer with a strong approach, can be invaluable during this time. Our experienced family attorneys in Texas are ready to help you navigate the divorce case and its complexities. Call us at (888) 584-9614 or contact us online to start planning your next steps today.