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Should You File First in your Custody or Divorce Matter?

Custody or Divorce

Most cases in court starts with the filing of a Petition or Complaint by the person who wishes to sue another. Child custody or divorce matter are no different, the initial document is the document that gets the case started. Either party, husband or wife, mother or father, can initiate the case based on their respective objectives.

The question often arises, “should I file first or should I wait until the other party is motivated to file?”  I wanted to address the pros and cons of proceeding either way, even though there is very little irreparable harm to the case if either option is exercised.


Contact The Divorce Coach for you Child Custody or Divorce Matters


Starting the case as the wife or mother in your case may be advantageous for several reasons. Let’s at it from a strategic perspective:  When you are the one filing for divorce you get to choose the legal grounds for the divorce. Depending on the state you are located in or the state you are filing in, choosing the grounds for your divorce may require “fault”. Although most states have some form of “no-fault” as legal grounds, some states’ variations of fault are not the easiest grounds to prove. For example, in Hawaii the parties are to remain separated for a period of at least 2 years to be able to choose “no fault” as their basis.  On the other hand, the petitioner can choose to forego “no fault” grounds based on the facts of their particular case.  Doing this can serve as a strategic tool when negotiation efforts get under way.  For instance, a wife may sue for divorce on the grounds of adultery, explicitly stating all the details of her spouse’s infidelity. The fact that his indiscretions are now open to public view & scrutiny may incentivize him to do whatever it takes to either have this changed to a different grounds or to have the case settled quickly to avoid public humiliation.

Next, the Petitioner gets to choose the jurisdiction to handle the divorce. In some instances, more than one state has the legal authority to “hear” the case based on the parties’ state of residence, the location of the commission of the acts that give rise to the case, or some other association the parties might have to the jurisdiction.

You can prepare more in advance since your ex or soon to be ex may be clueless of the impending filing & thus be unprepared for the case. If you are convinced that divorce is the route you want to take then you could and should start to gather relevant information, documents, etc.. In addition, you should start searching for family law attorneys who can represent you if the circumstances of your divorce or child custody case warrants it.  If you meet with the most reputable attorneys for consultations, be sure to keep track of who they are and advise them to do the same so that you limit their availability to your ex or soon to be ex for representation.

I understand that a lack of resources may leave the party with no choice, forcing them to be the Respondent in the case.  However, the answer to that problem may be a counterclaim or a motion to dismiss their petition.  Whether or not either action is warranted should be determined with the assistance of your family law attorney.

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