Does it Matter Who Files First in a Divorce?

Posted by Josh Valentine | Feb 28, 2020

The court should treat both spouses fairly and equally in a divorce. However, the spouse who files first in a divorce may have some benefits at the responding spouse's expense. Filing for divorce is a serious step and a spouse may have reasons to reconsider or put off filing. Even after talking about a divorce, one spouse may still be surprised to be handed the formal divorce papers, which requires immediate attention.  

If you have any questions about when is the right time to file a complaint for divorce in North Carolina, talk to your North Carolina divorce attorney about your rights and options.  

Does the Court Give Preference to the Spouse who Files for Divorce First?

The court does not give preferential treatment to the spouse who files for divorce first. When a judge is deciding child custody, alimony, and how to divide up marital property, the court is not supposed to consider who filed first as a factor in those decisions. However, being the first to control the divorce process can have some advantages. 

The party who files the complaint is the “plaintiff” in the divorce and the other spouse is the “defendant.” This generally means that the plaintiff is the first to have their say in court and the defendant will be the first to respond. The plaintiff who filed the divorce gets to present their case first before the judge.

Divorce on Your Own Terms

By being the first to file in a divorce, the divorce is initially under your control. It can be a significant event when the formal divorce papers are in your hands. The difference between a spouse threatening divorce and actually being served the divorce paper may be enough to make the other spouse make significant changes to their practices and behaviors that end up saving the marriage. Then, the spouse who filed for divorce has the ability to withdraw the complaint. 

The first to file also may have the benefit of time to prepare for the divorce. This includes finding the right North Carolina divorce attorney to act as your advocate through the process. After consulting with your attorney, you will have a better idea of the process, what to expect, and understand your options in going through a divorce. 

Alternatively, the spouse who does not file for divorce is forced to react to the filing, which also includes a time limit for responding to the complaint. After service of the complaint, the respondent has 30 days to provide a formal answer to the complaint, with a possible extension for more time. Thirty days may not seem like much time when the individual is still balancing work, children, and other obligations of daily life. 

For example, Frank is a salesman with a large manufacturing company outside Charlotte. Frank is about to leave on a two-week trip to China for important meetings with a number of suppliers. As Frank is about to head to the airport, Frank is handed a divorce complaint by a sheriff's officer. Frank will have 30 days to file an answer. Unless Frank cancels the trip, he will be busy working and traveling while trying to deal with the divorce response, which could negatively impact his job and his divorce outcome.   

Filing for a Divorce

Whether you are first to file or are responding to divorce papers, the most important thing is that you are prepared and protected by an experienced divorce attorney. At Caulder & Valentine Law Firm, PLLC, we have helped spouses protect their rights and interests in a North Carolina divorce. Contact us today in Shelby for a consultation.

About the Author

Josh Valentine

You could say Josh has a God-given ability for sustaining long-term relationships. He and his wife first met in elementary school and went to Gardner Webb University (GWU) together, where they tied for number 1 in their class. Then, they both started law school on the same day of their graduation and got married during their first semester. He has also known his law partner Blake Caulder since Kindergarten. Theirs is the perfect partnership. “He’s the brake; I am the accelerator,” Josh says. Both Josh and his wife attended an innovative program at Charlotte Law School that allowed them to complete law school in two years instead of the typical three. His wife graduated and passed the North Carolina bar at age 20, becoming one of the youngest attorneys in the state. He readily admits she’s smarter than him. Of course, Josh went on to pass the North Carolina State Bar himself and later the South Carolina State Bar. While in school, he was Associate Editor of the Law Review and received accolades like Phi Delta Phi International Legal Honor Society membership, Order of the Crown, Pro Bono Honors, CALI Awards (highest grade). In his career as a lawyer, he has been admitted to the United States Federal Court for the Western District of North Carolina, is a member of the American Association of Premier DUI Attorneys, and completed training for DWI Detection & Standardized Field Sobriety Testing. Josh has also been named to the Top 40 Under 40 for Criminal Defense by The National Trial Lawyers, the Business North Carolina 2019 Legal Elite for Criminal Defense, and the 10 Best Attorneys for Client Satisfaction by the American Institute of Criminal Law Attorneys three years in a row (2016, 2017, and 2018). Community involvement has been important to Josh all his life. In high school, he participated in building a Holocaust museum that has become internationally regarded. He and his wife are actively engaged in animal rescue, which currently means seven cats and two kittens. He served in prison ministry and assisted with fundraiser banquets there, and he provides pro bono and reduced fee legal services to those in need. As if all of that weren’t enough, Josh also mentors high risk youth and helps with his church’s youth group. He participates in other community volunteer projects involving construction, remodeling, drywall, painting, and landscaping. He’s an active student of the Bible and has traveled to Israel, Brazil, and Europe for mission work. No one can say Josh isn’t a well-rounded individual. In his spare time, he likes to play softball, basketball, and tennis, and he can play the piano and trombone. Sometimes on weekends, believe it or not, he enjoys pouring and finishing concrete with friends who own a concrete and grading business. In his law practice, Josh has made it a point to develop positive relationships with officers, clerks, and district attorneys, which has proven invaluable in delivering positive results for his clients. It’s important to him to both listen to his clients and fight for them. Law enforcement officers have important responsibilities to keep our communities safe and uphold the law, but one of the responsibilities of attorneys is to make sure officers do their job correctly. Josh considers it his job to hold them accountable for their actions. Josh is a person of deep faith. He knows that the established order of our universe and strength of America’s Judeo-Christian influenced court system is built on God’s word. His passion to serve each client with innovation, excellence and integrity is a byproduct of his faith. When asked why he became a lawyer, Josh says, “All through my life, I have personally witnessed family members and very close friends endure divorce, child custody battles, bankruptcy, civil lawsuits, and even fraudulent criminal accusations. I both saw and experienced the stress such events can place on an individual, and I realized that everyone, at some point in their life, needs hope, comfort, and encouragement. In each one of those situations, the person who was best situated to provide that vital support was their lawyer. So that’s why I became an attorney. I understand what you are going through, and I’m here to help you. Our office is focused on meeting your needs and guiding you through what may be the most difficult time of your life.” Education: Charlotte School of Law J.D., Magna Cum Laude Class Rank – 21 of 328 Associate Editor of Charlotte School of Law Law Review Certification and Concentration in Employment Law Phi Delta Phi International Legal Honor Society Order of the Crown Pro Bono Honors CALI Awards (Highest Grade)—Lawyering Process I and Contracts I Full Scholarship Gardner-Webb University B.S. in Accounting, Summa Cum Laude Distinguished Senior Student Award – Highest GPA Alpha Sigma Lambda National Honorary Society Bar Admissions: North Carolina State Bar