Is it better to file first for divorce or custody?

Posted on Mar 25, 2019 by Katie Carter

It feels better to operate offensively than defensively, doesn’t it? One of the worst things about divorce and custody cases for many of my clients is that they just don’t know what their husbands/children’s fathers are up to. Things aren’t going well, and there are some major disagreements, so you’re worried that something bigger is afoot.

Also, when you file first in court, you’re typically labeled the “plaintiff,” and the person answering or responding to that initial filing is called the “defendant.” Isn’t it BAD to be the defendant? It probably brings up images of handcuffed people in orange jumpsuits shuffling into the courtroom.

But, once and for all, is it better to file first in divorce or custody cases?

It really doesn’t matter. This isn’t a criminal case, where the state is bringing charges against you. Even if you’re a defendant, that doesn’t mean that you’ve done something wrong. There is no presumption in favor of whichever party filed first. (Can you imagine if there were? People would literally file lawsuits left, right, and center just to preserve that advantage – it would NOT be a good policy for the court. It doesn’t even make sense!)

There is absolutely, positively not a legal advantage to filing first. The judge is not going to weigh you having only responded to his initial filing against you.

Are there reasons why you might want to consider filing first? Sure. But whether you decide to go ahead and file or whether you decide to wait until he decides to move things forward, it’s probably a better idea to think first about the actual facts of your case, rather than any particular advantage of disadvantage you’re imagining might come just because you’ve filed first.

Why might I choose to file first in divorce or custody cases?

You should file first if you’re the one most desirous of change. If you’re dying to get these divorce proceedings started, or if there’s an issue with respect to custody and visitation that you need heard, it might be a good idea to file. It takes some time to get into court in most cases, so the sooner you act, the sooner you’ll get a court date. Most of the courts in our area are operating right now with too few judges, so court dates (especially in places like Virginia Beach, Suffolk, and Chesapeake) are really hard to come by.

Even if your case ultimately doesn’t go to trial or a hearing, by filing something and setting a date, you light a fire under the opposing party. You’re forcing things forward, so they have to respond to you. It often opens up negotiations, too – so it’s entirely possible that whatever issue(s) you’re facing may be resolved by an agreement even before your court date. Hey, it happens! Actually, it happens more frequently than not, because settling gives the parties more control over the actual outcome. (Who actually LIKES to leave big decisions up to a judge who doesn’t really know that much about you or your children? No one, that’s who.)

You should NOT file first if you’re not desiring a change.

I spoke to a lady the other day who told me that her baby had just been born, and she and her ex were having some disagreements about custody and visitation. Dad actually wasn’t seeing the baby all that much, so she had virtually 100% of the time with the child.
So, yeah, probably a good idea to make HIM file. Why would you file, knowing full well that he will almost certainly get at least some visitation? If he’s not exercising it, and you’re able to keep the child with you most of the time — well, why file and upset the apple cart? Sure, there are some disagreements, but this lady is still the one who is holding most of the cards.

If you’ve got primary physical custody (and want to keep it that way), then it’s best to let him do the leg work to start to move the case forward. Hey, why make it any easier on him to take you to court and (potentially, at least) make a change that you don’t want made?
If you hold all the cards, make him do the work. It’s possible that, because it requires work and money on his part, it won’t happen anyway. It could be just an idle threat. If he DOES file, though, worry about it then. Hire an attorney then. Don’t waste your life today worrying about what might happen tomorrow.

Keep in mind, too, that custody and visitation is always modifiable based on a material change in circumstances anyway, so at least as it relates to custody and visitation – it’s always possible that petitions could be filed and changes made. It’s not easy to be comfortable with uncertainty, but there’s always going to be a degree of it where custody and visitation are concerned.

Are there strategic advantages to filing first?

So we’ve already established that there’s no LEGAL benefit to filing first, but is there a strategic benefit?

I get it – you’re worried. And you want to know how it works if you file first versus him. We’ve already talked about looking at the details of your case and making decisions on that basis, but you should know the full and complete story.

There may be a small strategic advantage, but that’s it. If you file first, you speak first – both in the form of your petitions (obviously, because you filed first) and when your case comes to court. The party petitioning goes first – presents evidence first, introduces witnesses first, makes opening and closing arguments first.

The party responding goes second – presents evidence second, introduces witnesses second, and makes opening and closing arguments second. In a custody case where a GAL has been appointed, the GAL goes third.

But is it worst to go last? I’ll leave that to you to decide. I don’t honestly think that this is a big strategic point. There are no jury trials in divorce and custody cases in Virginia, so the judge knows that you haven’t had a chance to speak while the plaintiff/petitioner is making his case in chief. The judge is deciding issues based on the law, not based on who happens to speak first.

It might FEEL like a big deal, especially while it’s actually happening. Before you’ve had a chance to question your witnesses or present any evidence, it’s obviously going to feel fairly one sided. But not to worry – you’ll get your chance to speak, too.

So is it an advantage? Certainly not one worth filing over, especially if you’re not desirous of a change. I don’t even actually think it matters; there’s some advantage, too, to seeing what the other side will present before you make big decisions about witnesses you call.
Don’t trust me? Still not sure? Totally fine. I get it; after all, this is only an article you found on the internet. There’s tons of good and bad information out there, and you want to make the best decisions possible to protect yourself and your children. For more information, give our office a call and come in for an appointment! You’ll feel better, and you’ll have had the opportunity to talk face to face with a licensed and experienced Virginia divorce and custody attorney. Call us today at 757-425-5200.