Tactical Advantages In Filing First In Your Divorce

There are arguably advantages in filing first in your divorce. However, none of those advantages is likely to make or break your case. Specific advantages include the ability to go first and last in trial and not having to live with the fear of a being served. There are also some potential disadvantages, including fees that you pay.

Petitioner Gets to Go First and Potentially Last

One of the most oft cited advantages in being the first to file involves being the first and possibly last to present evidence in a trial.

The theory is that psychology teaches us that recency and latency are important tools in persuasion and memory retention. Accordingly, if you are the first and last person to present evidence, there’s a theoretical advantage to you.

When you are in trial, the Petitioner (the person that filed first) is allowed to present evidence before the Respondent (the person that didn’t file first). Once the Petitioner has called any witnesses he or she wishes to call and offered into evidence any exhibits they might have, the Respondent has a chance to do the same. By default, then, the Petitioner is the first one being heard by the judge. Once the Respondent has finished presenting evidence, the Petitioner, if he or she reserved the ability to do so, has a chance to come back and present additional evidence refuting new ideas that the Respondent brought up.

In effect then, the Petitioner can be both the first and last thing the judge is hearing. That fits perfectly with the recency and latency model. The problem, however, is that most family court judges take diligent notes and/or listen intently to all of the evidence as the trial is going on. Accordingly, they tend to be less persuaded by the order in which evidence is presented than they are by the actual evidence itself. Thus while there is a potential subtle advantage in being the Petitioner, pragmatically, it doesn’t make any real difference.

Being First to File Means Not Fearing Process Servers

If you are the first to file your divorce, you have to “serve”—or put on official notice of the fact that the case is going on—the other party. Service can be done in a number of ways, but is often done with a process server or sheriff.

Because there’s a presumption that if you are the one that filed the case, you know that the case is going on, you don’t generally need to be served with the initial filings (note that there are other things you could be served with, such as a motion for temporary orders and/or order to appear or filings from a different case, such as an order of protection matter). Accordingly, by filing first you don’t have to look over your shoulder every few minutes waiting for a process server or be concerned that a process server is going to show up someplace embarrassing, like in a meeting at work.

This, however, is more of an advantage based on comfort and doesn’t really provide any sort of actual tactical advantage in the divorce itself.

Filing Fees Are Generally Higher If You File First

One DISadvantage in being the first to file is that Arizona filing fees are generally higher for the person that files first. Each side is required to pay a fee to appear in a case. The first person to file usually has to pay $70-$100 more than the second person. Additionally, the first person to file has to potentially pay for a process server to serve the initial filings on the other party. That can add on another $50-$150.

If the case is contentious, litigated, and utilizes attorneys, this amount may be fairly nominal against other fees that the parties are required to pay. However, if those amounts make a difference to you it’s an additional consideration to take in the case.

Regardless, as with the other points above, this is not something that will substantively change the outcome of your matter.

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