Who Should File First For Divorce? Does it Matter?

Nik Fondren • August 24, 2023

Taking the First Step: Exploring the Significance and Considerations of Filing for Divorce

The decision to file for divorce is not one that’s made lightly. A pressing concern many have before they file, though, is whether they should go ahead and file or they should wait for their spouse to do it. In many cases, it may not make much of a difference. However, there are some situations in which it can make a difference, and that difference can be enough to sway the divorce. It’s crucial to consider the timing of filing for divorce and who should file carefully before making any decision. 


Initiating the Process


Initiating the divorce process may make a difference by giving the person a little more control over the first steps. Though this may not be a big deal in the end, it does give them the opportunity to decide when the divorce is filed if they are interested in making sure it proceeds quickly or if they have something that needs to be addressed right away. 

Filing first can make a bigger difference in cases where the element of surprise can give the filing spouse an advantage over a spouse who may try to hide assets or otherwise impact the case through deception. Talking to a divorce attorney in Cullman can help determine if filing first is a good idea and, if so, when to file to take advantage of the element of surprise. 


Financial Considerations


When a divorce is contentious, it may not be easy for one spouse to get documents from the other. The filing spouse may be able to time the divorce so they can access all documents that are needed for it, such as bank account statements, copies of wills, life insurance policies, and more. Having these documents before filing can help prevent changes during the divorce process or highlight changes that do occur and that can impact the divorce. Being first also allows the filing spouse to make sure they are financially stable before the process begins, preventing issues if bank accounts are cleared out or closed. 


Standing Order Can be Requested


When there is a concern that a spouse will make significant asset changes, such as selling a property, draining a bank account, or hiding any assets, it is important to move fast and request a standing order from the court. A standing order prevents anything significant from changing until the divorce is complete so that it’s more difficult to hide assets or to take away funds needed for the filing spouse to pay bills and cover necessary expenses. This can be needed in any type of divorce, but it’s especially important if the filing spouse has not worked or does not make as much money. 


Psychological Impact


Divorce typically invokes strong feelings in the couple, so it’s no surprise that filing first can have an impact, too. The filing spouse may feel more in control or empowered by taking the first step to end the marriage, and this can help get them through the process. The other spouse, however, may have strong emotions after being served divorce papers, especially if they were not expecting to be served or are unhappy with anything included in the documents. 


Impact on Children


It is common for divorce to have an impact on children of any age, including adult children. This does depend on the reason for the divorce, whether it’s amicable or contentious, and how everything plays out during the divorce process. It can also depend on who files for divorce first. In some situations, children may see the filing spouse as the person ending the marriage and may blame them for the breakup. In others, though, the children may be proud of the filing spouse for taking the first step, depending on why the marriage is ending. Communicating with the children using age-appropriate explanations can help minimize the impact of who files first on the way they see their parents. 


Are There Disadvantages to Filing First?


While filing first can be advantageous in some situations, it can have negative consequences, too. It is important for the spouse to determine the extent of the negative consequences before filing first and determine if it may be better to have the other person file. Some of the disadvantages include the following.

  • Cost of the Divorce. The person who files will typically pay any filing fees as well as the cost to serve their spouse with the divorce papers. Though this can end up being a small percentage of the overall cost of the divorce, especially for drawn-out cases or ones where there is a lot of fighting, it is something to consider. 
  • Heightened Conflict. The person being served divorce papers may be angry, and it may cause more conflict during the divorce process. This doesn’t happen in every case, and if the couple is able to work together through the divorce, who files first may not make as much of a difference. 
  • Asking for Too Much or Too Little. In the initial paperwork, the filing spouse will ask for what they want out of the divorce. If the filing spouse asks for too much, the other spouse may overreact or refuse to negotiate. If they ask for too little, they may give up assets the other spouse was willing to split and will have less room for negotiation. 


The divorce process varies based on the reason for the marriage to end, the ability of the spouses to get along, and a lot more. It can also be impacted by who files the paperwork first, so it’s important to never make this decision lightly. Filing first can be a good idea, but there are times when it’s not recommended because of the impact it can have. Someone who is interested in filing for divorce from their spouse will want to speak with a lawyer about the situation before making any decisions. A lawyer can help determine if it’s advantageous to go ahead and file or if it might be better to wait and see if the other spouse files first. 


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Many people find a car essential today, particularly individuals who do not live in urban areas. Public transportation may be unreliable, and men and women must get to work, school, medical appointments, and more. In addition, the ability to drive is a sign that a person is free. They can choose to go wherever their heart desires at a moment’s notice. They aren’t relying on someone else to take them where they want or need to go. Driving is not a right, however. It is a privilege granted by the state where the individual lives and this privilege can be revoked in certain situations. The person named on the driver’s license agrees to obey all traffic laws and drive safely on all roads. The state retains the right to suspend or revoke the license when they don't. Men and women should consult a criminal defense attorney if they lose their license following a DUI charge to navigate the process of restoring the license. Driver’s License Suspensions  The state may suspend a driver’s license for several reasons. A driver with several traffic tickets might find the state takes away their ability to operate a motor vehicle, as it is responsible for keeping other drivers on the road safe. When a person fails to appear in court after being ordered to do so, the state may suspend their driver’s license. It might also take a person’s license if they own back child support to encourage the delinquent parent to catch up on their financial obligation. Driving under the influence will also lead to the suspension of a person’s license. Driving Under the Influence A person driving under the influence of drugs or alcohol will have their license suspended, and that is only one of several penalties they face. When charged with this crime, a person immediately loses driving privileges. Law enforcement has either tested this individual and found their blood alcohol content was at or above the state legal limit or the driver refused chemical testing. The driver must turn their license over when they are charged. They may have the license returned until they appear before a judge, and the judge may suspend the license again for a longer period. Implied Consent Many drivers believe they can refuse chemical and field sobriety tests to avoid losing their licenses. That is not the case. When they receive their driver's license, they agree to undergo chemical testing for drug or alcohol use. This testing may include blood tests, urine analyses, breath tests, or a Breathalyzer. When a driver refuses one or more of these tests, the law enforcement officer may arrest them and require them to undergo testing. Refusing these tests subjects the driver to harsher penalties. The refusal may lead to the driver losing their license for 90 days or being required to have an ignition interlock device installed on their vehicle. Prosecutors may also bring up this refusal in court as evidence of the driver’s impairment. Restoring Driving Privileges Once a License Has Been Suspended Drivers must know how to have their license restored once it has been suspended. They must first confirm that the license has been suspended rather than revoked. When the license has been revoked, the driver must go through all steps required to restore their driving privileges just as they would if the license were suspended. However, they must also retake their driving tests before getting their license back. Administrative license suspensions often come shortly after a DUI arrest. They differ from a license suspension related to criminal charges, such as a DUI conviction. To restore a license following an administrative suspension, the driver can request a hearing where they contest the suspension. During this hearing, the law enforcement officer who handled the arrest will share evidence of why they stopped the driver and what they found during the traffic stop. The driver then mounts a defense, and the hearing officer rules. If the hearing officer upholds the suspension, the driver must abide by all court orders and pay all fines and fees before the suspension period ends. The fines, fees, and court orders vary by the suspension type. DUI Suspensions Before restoring a person’s license when they have been convicted of a DUI, Alabama requires the driver to complete a substance abuse treatment program. The state currently has over 25 court referral programs for drivers, and each program has court referral officers and juvenile instructors. The driver might be required to sit through presentations about substance abuse and how drugs and alcohol affect their driving. The court might also have them participate in an inpatient or outpatient substance abuse treatment program. Level One treatment involves a 12-hour presentation about substance abuse laws and how different substances affect a person’s driving ability. Courts only offer this level for individuals who don’t have an identified substance use disorder. If the court presumes or determines a person has a substance use disorder, it will order the individual into Level Two treatment. The driver participates in a program that lasts at least 24 hours. The student must interact and take an active part in the treatment. This treatment program covers everything from Level One and delves further into substance abuse patterns and available support systems. Self-help meetings make up a portion of Level Two treatment programs. Level Three treatment programs include a mental health evaluation. The student is also referred for treatment in an approved substance abuse program, which may be either inpatient or intensive outpatient. Anyone 21 and under charged with DUI is considered an at-risk youth. They must take part in a 12-hour presentation. The presentation covers topics such as coping skills and conflict resolution. In addition, the youth will learn more about alcohol and drug abuse laws. Restoring the License Taking part in a treatment program is one step in restoring the license. The driver must also pay any fines associated with the suspension and obtain SR-22 insurance. The state may issue a restricted or hardship license for those needing a license to continue working or attending school. This license allows the individual to drive under certain conditions, such as when they have medical or treatment appointments to attend. Before issuing this restricted license, the court will require the driver to install an ignition interlock device on their vehicle. How Long Will the Suspension Last? Administrative suspensions may last as little as 90 days or up to three years. First-time offenders will have their licenses suspended for 90 days, second-time offenders will lose their licenses for one year, and third-time offenders lose them for three years, according to FindLaw.com. If they obtain a restricted license, it may be used for essential travel only in Alabama. Fines and Penalties Assessed with Suspended Licenses Any driver whose license has been suspended must pay a $275 reinstatement fee. There is also an additional $25 drug-related fee and a $150 interlock issuance fee. Additional fees may also be charged, and the driver might need to pay an attorney to fight the suspension. Fees are typically lower when the suspension is from something other than driving under the influence. Contact a criminal defense attorney for more information on restoring a suspended license. No two cases are identical, and the attorney can guide the person through this restoration. With their help, a person can navigate this process and get their license back at the first opportunity.