Business & Divorce
Should I file for divorce?

Should I file for divorce?

September 07, 2017

The Basics of Filing for Divorce

If it’s clear to you that your marriage is over, it’s time to start researching the facts about divorce. First, you need to hire a divorce lawyer to represent you. As you choose your lawyer and await your consultation, take time to understand how the process of filing for divorce works. Here are the answers to some questions you might have about divorce.

Should You File for Divorce First?

If your spouse hasn’t filed yet, you might be wondering if you should be the one to take the first step. In general, the person who files has a slight advantage because he or she won’t be surprised with divorce papers. This means that when you file, you can plan ahead and have some idea of whether you will leave the house or stay in it. You will also have ample time to prepare any documents you’ll need for the divorce, which means you won’t have to scramble at the last minute. Additionally, if you think your spouse will try to avoid divorce by hiding from the process server, it’s best to file as soon as you can so you don’t have to hire an investigator to track him or her down. Filing for divorce and serving your spouse makes the Automatic Temporary Restraining orders enforceable.

You will have to pay a filing fee, what is called a first appearance fee. In California, the filing fee ranges from about $300 to $500. You’ll also have to pay to have your spouse served with divorce papers. That fee is usually anywhere from $50 to $100. If you meet certain income threshold, you may qualify for a filing fee waiver. However, the Respondent will also have to pay the same filing fee in order to file the response to the petition

Is there a tactical advantage in filing first? Not really. The Petitioner (the one who files the petition for divorce) get to go first at trial is really the only tactical advantage.

Do You Need a Restraining Order?

One main reason to file first in certain states is that you’ll likely want a temporary restraining order to ensure your spouse doesn’t try to leave with the children. If this is a concern for you, it’s important to file first.

In California, you get an automatic temporary restraining order (ATRO) once your spouse is served, so you don’t have to request it. This should keep your spouse from leaving the state with your children, and of course, it also prohibits the spouse from tampering with the marital assets to be divided.

As long as you’re willing to pay the fees, filing first is often a good choice. This is especially the case if you’re worried your spouse will try to break any laws when it comes to child custody, division of assets and more.

Some other important information to consider:

If you’re located in Southern California and need additional guidance with your divorce, come to the Edgar & Dow today for a free initial consultation from a team of caring, experienced divorce lawyers.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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