| Read Time: 3 minutes | Family Law
Who Should File for Divorce First in California

When you pledge “I do” on your wedding day, you hope it is until death do you part. Unfortunately, many couples grow apart or face circumstances that lead to separation or divorce. Once you’ve decided divorce is the best way forward, you may wonder, Who should file for divorce first in California? And, Does it matter who files first in a divorce? 

Due to California’s no-fault divorce law, it doesn’t legally matter who files for divorce first since no one has to prove a reason for the divorce. Nonetheless, being the first to file may have some strategic advantages. 

Advantages of Filing for Divorce First

Being the first to file for divorce may offer several advantages, depending on your circumstances.


The person who files for divorce first (the petitioner) chooses the location of the divorce proceedings. If you and your spouse live in different places, filing first means you can select the more convenient venue and avoid inconvenient travel for divorce-related matters.

The place where the divorce is filed can also impact child custody, child support, alimony, and division of marital property because of varying state laws and rules. Some states may have more favorable laws than others. 

Time to Plan

Divorces require a lot of planning and preparation, including completing the petition for dissolution of marriage and compiling financial documentation. Being the first to file means you can take your time collecting documents, putting money aside, speaking with an attorney, and preparing a legal strategy before submitting the petition. You also get to choose the time that works best for you to file the petition. 

Once you file and serve the divorce petition, the responding spouse has 30 days to file a response. If the respondent fails to respond in 30 days, the court can enter a default judgment against them and move the case forward without them. 

Divorce can be emotionally taxing, and you may experience grief or anger. Not only does filing first allow you time to plan for the legal process, but it also provides you time to adjust emotionally.

Presenting Your Case First

If your divorce case goes to trial, the petitioner presents their case first. As the petitioner, you can testify and present evidence to support your requests for child support, child custody, and alimony. You get to tell your side of the story first. The responding spouse then has a chance to refute your allegations.

Protecting Assets

Unfortunately, some spouses can be spiteful and try to hide, transfer, or sell off assets. If you file immediately, you can help protect your assets and financial future. Following the filing of the petition, the court issues standard Automatic Temporary Restraining Orders (included in the summons). The orders prevent both spouses from transferring assets, blocking them from hiding assets in anticipation of divorce. The orders also prevent a spouse from removing minor children from the state without the other party’s prior written consent or a court order.

Disadvantages of Filing for Divorce First

While there are several advantages to filing for divorce first, there may also be some reasons to wait until the other party files. 

Filing Fees

The person filing for divorce must pay the initial filing fees, which can be up to nearly $450 in California. The petitioner must also serve a copy of the divorce papers on their spouse. Hiring a process server can also cost money. 

Showing Your Hand

Your petition will include how you want assets and debts divided, who should have custody of minor children, and your request for spousal support (if any). By including this information, you reveal your demands and give the other party a sense of your strategy. This can give your spouse time to adjust their case presentation and strategy.

Pakpour Banks LLP Can Help You Determine If You Should File for Divorce First

Determining whether to file for divorce first in California depends on the unique circumstances of each case. Pakpour Banks LLP can help you determine if filing for divorce first is in your best interest based on your situation. Our experienced family law attorneys can review your case, explain the advantages and disadvantages of filing for divorce first, and help you create the strategy that best suits your needs. Pakpour Banks can offer the legal guidance you need during this emotional and stressful time.

Our small size allows us to offer each client personalized, one-on-one attention. With our deep understanding of California divorce law, we can fight for what you want and deserve in your divorce. Contact Pakpour Banks LLP today to learn how we can help you during your divorce.   

Author Photo

Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.

Read More Legal Blogs By Brian Pakpour

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