Does it matter who files first in Virginia divorce and custody?

Posted on Nov 7, 2022 by Katie Carter

Does it matter who files first in Virginia divorce or custody?

I was recently reading a book, “The Respondent”, about a dad who faced a divorce and ongoing custody battle in California, allegedly as a result of the lies his wife told about his relationship with his two young boys. I have a lot of feelings about the book – many of which I imagine I’ll work through in articles like this over the next few months – but one of the things that stood out to me at first was his assertion that filing first gave his wife the upper hand.

He also points out – repeatedly – that women file first in the majority of cases. He repeats this statistic over and over again, like it somehow means that there’s something wrong with women, or something more nefarious going on. I’ve come across this statistic as well – something like 2/3 of divorces are initiated by women; among college-educated women, that number goes up to 90% – in my own research.

He opines that this is because women are sneaky, that they’re looking for the upper hand, that they’re trying to put the building blocks in place in a kind of a war so that their husband is left dumbfounded, scrambling, and at a distinct disadvantage.

In my experience, though admittedly I’m no psychologist, it’s more because women find so much value in their relationships. Men find value in other things, like professional success, that define them more so than their success in a relationship. They can bumble along, happy enough, without giving it too much thought. A woman, on the other hand, is more likely to find that what she has isn’t enough, that she craves deeper connection, that ‘good enough’ isn’t very good at all – and certainly not what she imagined.

Men are more likely to be happy, longer term, with a less than desirable relationship. Women are not as likely to put up with it.

I’m not here to judge either way. As a woman, I find that my own relationship is a real defining characteristic of my own life, far more than the job that I happen to do – and I really love my job, which I do think is fairly obvious. I feel successful, though, more when I think about my marriage and my children and my home than when I think about my career, so I can relate to a feeling that everything feels like a failure if the marriage is a failure.

Anyway, this isn’t the question I’m here to answer today. Does filing first make a difference?

In the book, the case took place in California. Full disclosure: I’ve never practiced family law anywhere other than Virginia, so my perception and perspective is skewed towards what I’ve seen happen, firsthand, in Virginia cases in Virginia courts.

My experience is that, no, filing first does not give an actual legal, procedural advantage. It’s true that, by filing first, you obtain the label ‘plaintiff’ or ‘petitioner’, and the person you’ve filed against is the ‘respondent’ or the ‘defendant’, but these labels don’t take on the same connotations as in a criminal case. Divorce is civil – meaning ‘not criminal’ – so we don’t infer wrongdoing just because someone responded to an already-filed petition.

The judge doesn’t look at the petitioner with more sympathy; doesn’t look at the respondent with more scorn. There are no juries in family law cases, either, so no one else, except perhaps the Guardian ad litem, is really there to make judgments at all.

Sure, the lawyers might engage in a mudslinging campaign. And I think the author of “The Respondent” would find fault with the attorneys for that behavior. But, in my experience, if there’s intense conflict between the parties, that’s something that existed prior to the parties’ relationship with a divorce attorney. They come to our office with that conflict fully formed. Sure, we may explore the nature of that conflict, especially as it relates to equitable division or custody and visitation, but that’s our job – we don’t make the fight, but we do look for evidence to support the division of assets or the custodial arrangement that our client wants. That’s our job. The conflict already exists.

Does litigation make it worse? Sure. I think almost anyone who has been through a high conflict case can tell you that. But not every case – not every couple – can settle. That’s not the divorce attorney’s fault. Goodness knows, we try to settle before trial!

In a contested case, the person who files first presents her evidence first. The person who responded goes second – but they get the final word, too! After the case in chief has been presented, each side can make closing arguments, and, again, the petitioner goes first. But, by going last, the respondent has the last word.

That, in my opinion at least, sort of evens out the advantage. And, anyway, the judge isn’t as fooled by theatrics as a jury might be. The judge is looking at evidence, testimony, exhibits – and, in many cases, awards something close to 50/50 anyway. Custody, visitation, and child support are modifiable, and in certain situations spousal support can be modifiable, too, but the bulk of the issues are likely going to be divided 50/50, absent some pretty strong evidence.

Is there an advantage? In my experience, no, unless you count, perhaps, a psychological advantage. The person responding isn’t really setting the tone of speed of the case, in the beginning. The petitioner establishes grounds first – so, if she’s alleging fault, the elements of her ‘reasonable belief’ will be outlined in the document – and asks for her specific relief. She also basically mandates that the respondent respond to her petition; in Virginia, you have 21 days after service to respond to a complaint for divorce.

He may not have an attorney, so 21 days is a quick turnaround to find one, hire one, and then respond. So, timing wise, it can be shocking and feel like a mad dash to get a response in. I’ve also had wives who find themselves in this position, and it can feel really quick and unsettling. But that’s not a legal upper hand.

By filing first, you may feel more prepared and find yourself less surprised by the litigation. Men often report that they feel surprised. But, again, that’s not a legal upper hand.

The judge is not more sympathetic to the person filing. Women do not ‘win’ divorce more often than men – in fact, it’s probably fair to say that there are no real winners in the majority of cases. Equitable distribution is different than community property, so we don’t assume a 50/50 division of the property and assets, but that’s still the most probable outcome in most cases.

In Virginia, too, the law requires that all forms of custody are considered equally. It’s not a mandate that shared custody be awarded, but, in many cases, shared custody is awarded all the same. That’s not to say that primary physical custody doesn’t happen – it does, especially by agreement, and sometimes also through litigation – but the judges seem to like shared custody lately.

In short, no, I don’t think there is an advantage to filing first. Though, if you’re unhappy, you may want to file! That’s fine. Make sure to get more information about the divorce process by attending our divorce seminar, requesting a free copy of our book, and having a consultation one on one with one of our licensed and experienced Virginia divorce attorneys. You want the upper hand? Information and knowledge is the way to do it.