If you are the first to file for divorce, you will be known as the Petitioner. Ultimately, the differences between who files first are minimal but there are some procedural considerations as you will see below.
The Petitioner May Choose the CountyIf there are multiple counties in which the courts could have proper jurisdiction, the spouse to file first ultimately chooses the county that the matter will be heard in. If your spouse lives in another Texas county, it may be advantageous for you to file in the county closest to you. In Texas, It is sometimes better to file for divorce first so that the courthouse can be as close to your home as possible.
Control of the First Hearing DateThe party to file first is usually in control of the first hearing date for temporary orders, if temporary orders are requested in their case. Temporary orders may be requested for various reasons, but primarily parties want to establish provisions for conservatorship, child support, interim attorney’s fees, interim spousal support, temporary use of personal property, and temporary financial matters. Additionally, depending on how long your spouse waits to speak to an attorney before the hearing date, your attorney may end up having more time to prepare for the hearing.
Temporary Restraining OrdersIf you are concerned that your spouse is wasting community funds or hiding other assets, it is better to file for your Texas divorce first. Then you may get a Temporary Restraining Order (TRO) in place. A TRO is intended to maintain the status quo while your divorce is pending. For example, a TRO will prevent your spouse from selling or transferring any assets, canceling your insurance, or destroying any evidence related to the divorce. A TRO will stay in place for 14 days, and it is recommended to follow it up with a temporary mutual injunction with the same or similar provisions for coverage of the entire remaining time of the divorce proceedings. See this list of standard injunctions for examples.
Responsibility for Drafting a Final AgreementThe responsibility for drafting a final agreement, if one is reached at mediation, will usually fall to the Petitioner’s attorney. This does mean that you absorb some of the additional cost to cover the drafting time, but it also means that your attorney can make sure that the Final Decree of Divorce gets drafted in a timely manner. Additionally, we often experience issues with receiving final decrees from other attorneys who have just let their paralegal draft an order straight from a form generator. Having to revise an order that has not been given the proper amount of attorney attention can often end up costing the client more to revise than it would have for your attorney to just draft the final order themselves.
The Bottom LineIt is better to file first for your divorce in Texas if:
- You want a divorce court close to home
- You need to protect joint assets or evidence
- You want to resolve the divorce process quickly