In family law cases, does it matter who files first? In divorce, when negotiating child custody, or even requesting a prenuptial agreement, is it a race to the courthouse? These are the questions we are here to answer.
You may have recently read that Elon Musk and Grimes are in a jurisdiction battle to establish whether custody (and child support) will be decided in Texas or California. This is one of the situations where filing first can matter. However, in most divorce and custody cases, there is no reason to rush. Does it matter who files first in a Maryland family law case? Usually, no. But it depends on your circumstances.
Plaintiff and Defendant
In a divorce, the person who files is called the plaintiff and the person who responds is the defendant. In cases where everything is peaceful, the roles are simply titles. Legal documents need something to call the two parties, and ‘plaintiff’ and ‘defendant’ are the terms they use.
However, in a case where there is conflict, accusations, and points to prove, the roles of plaintiff and defendant may take on more significance.
No Race: Uncontested Divorces and Other Peaceful Cases
If you and your spouse – or any other party in a family law case – want the same things from the process, then there is no need to rush. In an uncontested divorce where both spouses want to negotiate the most practical division of assets and custody, the negotiation will matter much more than the timing.
In an uncontested divorce, a loving prenuptial drafting, or a peaceful child custody negotiation, who files first in Maryland or Washington, DC, does not matter.
Setting the Stage: At-Fault Divorces and Cases with Conflict
However, if there is conflict, who files first can matter. The person who files first will be able to tell their story first, present their evidence first, and force the beginning of the process.
Once one spouse files for divorce or disputes child custody, the other has 30 days to respond. They will need to dispute or disprove the claims, cast the situation in a different light, and will be on the back-foot in an adversarial situation. Filing first can give the person who files the home-team advantage by setting the stage for the divorce or decision.
In an at-fault divorce, the person who files for divorce is the one who creates the accusation of fault. It is not necessary to file an a-fault divorce, but proving fault can give the plaintiff an advantage in court rulings regarding protective orders, the division of assets, and child custody.
Benefits of Filing First in Maryland Family Law
Whether you predict conflict or you are simply worried about what lies ahead, there are a few benefits to being the first to file in a family law case in Maryland and elsewhere.
Race to Jurisdiction
The first to file can also establish a precedent for jurisdiction. Because different states have different laws, establishing jurisdiction where the laws favor you can be beneficial.
Preparing Your Materials
The person who files first is also the most likely to be prepared for the case before they file. This might be because they take the other person by surprise or simply decided to begin a process that both parties knew was coming. This leads to the second benefit.
Setting the Timeline
Filing first gives you control over the timeline. You start the 30-day countdown when you file, which can be beneficial even in an uncontested divorce of your spouse is dragging their feet or in a contested divorce if your spouse won’t engage in negotiations at all.
Preventing Negative Actions
If you are afraid that your spouse is about to waste or hide marital assets, you can file first in order to take action to prevent their negative actions. This can also help if you are worried that your spouse is about to try and move away to avoid your jurisdiction.
Should You File First in a Maryland Family Law Case?
If you and your spouse – or other parties – are on the same page, it doesn’t matter who files first. But if you are worried about any type of conflict, filing first can give you the advantage. The family law attorneys of Petrelli Previtera can help you to quickly prepare your case if you need to rush your case to the courthouse. If you can take your time, we will help you coordinate the best time to file for your ideal timeline and outcome.
Contact us today for your initial consultation.