It is a truth universally acknowledged among divorcing people that she who files first has the psychological upper hand. After all, the person who files first becomes labeled the “plaintiff,” rather than the “defendant,” and, subconsciously at least, that feels good.
To aggrieved women whose marriages are failing, despite all their best efforts, the need to file first is strong because of the definitive message it sends to hubby and the rest of the world. Take Katie Holmes for example. We were all shocked when she filed for divorce so suddenly and unexpectedly (apparently, Tom felt the same way). To Katie, though, it was an important and strategic move. Rather than letting her richer and more famous husband get the upper hand, she took the situation into her own hands and gave Tom a real sucker punch in the gut (you know, metaphorically).
In real life divorce practice, the first filing makes no appreciable difference. The word “defendant” seems to imply some sort of fault or wrongdoing, because of our association of the word with criminality (and because we’ve all watched a little too much Law and Order SVU). Divorce practice is entirely different. In fact, the legal world is broken up into two categories—criminal and civil—and only in the criminal category is the “defendant” believed to have committed some sort of wrongful act. The civil realm, which involves everything that is not criminal, makes no such distinction. “Plaintiff” means that you are the person who has complained of the grounds for the lawsuit (sometimes referred to as “complainant”), and “defendant” means that you are responding to the complaint (sometimes referred to as the “respondent”). In divorce practice, the husband can be simultaneously the adulterer and the plaintiff/complainant.
My advice: if your husband has already filed first, don’t waste time worrying about it. Stop thinking of yourself as the “defendant,” and gloss over any places where you see it written (like at the top of your pleadings in the style of the case).
If, on the other hand, you are serious about divorce and your husband is somehow has a stronger perceived strategic advantage (like, for example, he makes considerably more money than you), it can be effective to give him a legal (metaphorical) sucker punch by filing first.
I jest, of course. I would never suggest any actual physical violence, nor would I suggest that filing first will actually increase your bargaining position. It won’t. It can, however, provide one thing that many divorcing Virginia women need: a little self-esteem boost. Let’s be honest. It feels good to assert your independence. It feels good to be the driving force behind the change you need to see in your life. It feels good to have a sense of control over the situation. All good things.
After you file for divorce (in Virginia, you file a complaint), your husband is served (because in Virginia a complaint for divorce has to be personally served on your husband) and he has 21 days to answer (by filing a responsive pleading cleverly called an “Answer”). These facts alone bring up a number of pleasant thoughts. First, of course, is the fact that you can say (or just think quietly to yourself) “You’ve been SERVED!” Actually, on second thought, it really probably is better to just think it quietly to yourself. Secondly, because he HAS to respond to your complaint and has only 21 days to do so, it’s kind of like you’re saying, “JUMP!” and he has to say, “How high?”
All humor aside, divorce is a difficult and emotionally trying experience, whether you file the complaint or the answer. The best way to proceed is often to take the high road and remember that, at the end of the day, you want to feel okay with the outcome of your case. File first if that makes you feel better. But then put your big girl panties on and refrain from saying (or thinking) “You’ve been SERVED!” ever again.