You’ve had the dreaded talk with your spouse, telling them you want a divorce.

Neither of you has made the first move to file. Now what?

We understand that even if you’re the one who initiated the divorce conversation, you might not be raring to be the one to file.

We’ve got some tips on why you might want to do so – for example, filing first sets the cut-off date for the accrual of assets and debts, which is something you may want to control.

In addition, there are also some intangible benefits that can affect you today and down the line.


Think about it this way: If you file first, you set the tone for whether your split will be cordial or antagonistic.

We’ve seen litigants take unreasonable stances in their initial pleadings, which does nothing but anger and infuriate their spouse – and does nothing to move them toward settlement or agreement.

Even worse, being served with a complaint for divorce that claims infidelity or substance abuse can be infuriating (and in most cases, doesn’t get you any specific legal advantage). If you receive one of those, though, you’ll wish you filed first.


It’s also a good idea to file first if you’re pretty confident your partner won’t take part in the divorce proceedings.

Believe it or not, many people are in such denial that their spouse wants a split or they think if they don’t participate, the dissolution of their marriage won’t occur.

If you file first, your partner has 35 days to respond.

Guess what? If they don’t respond within that window of time, you can proceed and you’ll get to make a one-sided presentation to the court as to how you think your case should be resolved.

That helps you set the tone for the settlement. Be aware though, you can’t go hog-wild here; what you ask must be reasonable.

Conversely, if you’re the one who’s served, don’t ignore the complaint.

Hire an attorney pronto – which brings us to the next tip.


When you file first, you get the pick of the litter so to speak – you have the opportunity to speak to as many divorce attorneys as you like before you pick the perfect match for you and your circumstances.

When you file second, even though the court will allow you enough time to secure an attorney, you might feel pressure (and have less actual time) to find someone, anyone, as soon as possible.

The other issue is that if you’re the non-filing partner, and your ex spoke to lots of attorneys, your options will be limited because those consultations have created an attorney-client relationship.

That means you can’t hire that attorney because there’s a conflict of interest.

You might also get to pick the venue if you file first. In cases where partners have already separated and may be living in different counties or even different states, the person who files first picks the venue, provided they meet the criteria. For example, in New Jersey, you must have lived here for a year prior to filing.

That can save you a pretty penny on travel and other related costs.


If you’ve been the victim of abuse or infidelity, or you’ve just been unhappy because the partnership hasn’t been working for a long time, you’ve probably experienced a loss of self-esteem.

Filing first can be your statement that you’re not going to tolerate certain behaviors or circumstances any longer.

You’re taking your future into your own hands, rather than passively waiting for a change in your partner that’s never going to occur.

For some people, we’ve seen that filing first is the first in a series of steps in regaining their independence and sense of value.

And if you initiate the divorce, you can have your financial data, records and other information pulled together. If you’re served, then you might have to scramble to get the information for your attorney.

If you’re considering divorce, Petrelli Previtera, LLC can help you through the process – contact us for a consultation today.

Author Kristin M. Lis

Kristin is the Senior Associate at Petrelli Previtera’s Atlantic County office location in Linwood, NJ.  She  has been exclusively practicing family law for nearly a decade. She represents clients in a variety of legal matters including divorce, spousal support, custody, and other unique issues such as relocation, and adoption.