Does It Matter Which Party – Spouse Files First in a Florida Divorce Case?


Breaking up is hard to do. Sometimes, one person finds out that another has been unfaithful, or another person may just be out of love, and a Florida divorce can come as a surprise or without very much warning. But for most when a marriage is on the rocks, both parties may be considering filing for divorce. Clients coming in for an initial consultation about getting divorced will ask in many instances the following questions:

Does it matter that I file the Petition for Dissolution of Marriage first?

Will my spouse get the upper hand if he or she files first?

What are the advantages if any of being the Petitioner (person who files) versus the Respondent (person who gets served with divorce papers?

Florida is a no-fault divorce state, which means that neither party needs to provide a reason why the party no longer want to be married.  Florida merely requires that one party take the position that the marriage is “irretrievably broken.” In most instances, the reason why the two people are getting divorce may not even been considered. It does not matter to the judge or the Florida Family Law Lawyer who filed the paperwork first, and it does not give you an advantage legally.

As early as young people start dating, people prefer to be the “breaker upper” not the “one broken up with.” Therefore, there is definitely an emotional advantage to being the initiator for most people. If you are first to the courthouse with your paperwork to file for divorce, you are considered the “Petitioner,” and your spouse is considered the “Respondent.” Those titles do not mean “winner” and “loser.” That being said, the divorce process is a highly emotional time period. It is important to consider that deciding to get divorced is one the most life altering decisions that a person can make and should be considered carefully. It is not only important to consider that “everything my wife or husband does drives me crazy,” but also the implications of this decision on your children, assets, and finances. Talking to an experienced family law attorney who can guide you through the process and can provide reasonable expectations for you moving forward is the best first step that a person considering divorce can take.

If you are the person who has been served, take solace in knowing that the checkered flag of this race to the courthouse is just the beginning of the entire process. It is important to act quickly when you are served, as under Florida law, you have only 20 days from the day that you are served to answer in your divorce case. If you fail to answer, the court may enter a default against you. Therefore, in the first 20 days, meet with an attorney who can advise you of your rights and what you should expect from this endeavor. When I hear from clients that recently been served and were concerned about the “who files first” question, I try to remind them that in some ways their spouse did them a favor, because it is the petitioner that has to pay the filing fee to initiate the case. Trying to start out your case with a positive outlook and realistic expectations after speaking with an experienced Florida family law attorney will ultimately help you through this transitional time period.

Since 1957, the Florida Family Law Attorneys at Wood, Atter & Wolf, P.A. have been representing clients in Jacksonville and surrounding areas in family law matters including those related to divorce, child support, custody, parenting plans, adoption, domestic violence injunctions, and other matters.  The book titled – Florida Family Law – Enforcing Your Legal Rights & Rebuilding Your Life – is available for free to clients, potential clients, and others interested in learning more about Florida Family law issues.  You can get a free copy of this book at Florida Family Law Book. At Wood Atter & Wolf, P.A., we are On Your Side – At Your Side.

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