Does It Matter Who Files for Divorce First in Georgia? (2024)

By the highest standards, it doesn’t matter who files for divorce first. Procedurally, the main difference is whether you file the papers with the court and serve them on your spouse or have to respond to their complaint. Yet, a petitioner, the party who initiates the action, may have certain psychological and strategic benefits.

How Exactly Does Someone “File for Divorce First” in Georgia?

To “file for divorce first” means officially initiating a divorce action in Georgia. The filing spouse is a petitioner or a plaintiff who needs to serve the papers on the other party, a defendant or a respondent, notifying them about the pending divorce case.

To formally start the action, you must complete a Complaint for Divorce and other forms and file them with the superior court of the appropriate jurisdiction. This document is an official request to the court to terminate your marriage. In it, the plaintiff must indicate the grounds for divorce and provide the details about the parties, their marriage, and children, if any. They should also specify the requests to the court concerning child custody and support, alimony, property and debt division, former name restoration, possible restraining orders, etc.

From this perspective, being a plaintiff may be advantageous since you are the first to request relief in a way that suits you. Still, when responding to your Complaint, the defendant can file an Answer and Counterclaim for Divorce, making their own requests concerning the same issues. How these disputes will be resolved depends on the judge, who makes decisions based on Georgia laws. Filing first does not necessarily mean that you will get what you are asking for.

Is It Better to File for Divorce First?

It makes no difference if the husband or wife filed for divorce first since the process will move on its ordinary way, and the judge’s decisions concerning the relevant aspects will be based solely on the law. No preferences are made regarding the spouse’s gender or their anteriority in initiating the case.

Nevertheless, slight strategic and psychological benefits may become a decisive factor in your determination to file a Complaint with the local court.

1. You Can Choose the Divorce Option that Is Right for You

In Georgia, you can file for divorce on the grounds of irretrievably broken marriage or due to one of 12 fault-based grounds recognized by state law (O.C.G.A. § 19-5-3). When you initiate the action, it’s up to you to decide which reason for marriage dissolution to specify and if you want it to be a fault-based or a no-fault case.

2. You Can Pick the Court Location for Filing the Divorce

If you and your spouse live in different counties or states, being the petitioner allows you to choose a more favorable jurisdiction for you. Firstly, if you file for divorce in your county, you avoid traveling too far for the hearings or resolving the issues.

Moreover, divorce laws can vary between states and even counties. Therefore, you may consider the jurisdiction with more favorable laws concerning property division or child custody and start the action in the corresponding location.

3. You Get to Decide When to Start the Divorce

A petitioner has the upper hand in determining the timeline and controlling the process’s progression. You can file as soon as you are ready with the preparations instead of rushing with the response after being served with the papers. You may also calculate an approximate timeline, considering the waiting period and deadlines for each stage, and adjust it to your personal needs and preferences.

Besides, some fault-based grounds, like adultery or domestic violence, require you to file as soon as possible. Any delays may negatively affect the case outcome.

4. You Have a Chance to Properly Prepare for the Divorce

If you file for divorce first, the news about the case initiated by your spouse won’t be a shock, leaving you no time to get focused, compose your thoughts, and adequately prepare for the process. So, a petitioner can take advantage of the period from when the idea of marriage dissolution has emerged to the day they bring a package of divorce papers to the courthouse.

Indeed, since you set the pace, you have enough time to think everything over, consult experts for advice, collect important financial and ownership documentation, decide on critical issues concerning children and property, obtain the necessary forms, and fill them out thoughtfully and accurately.

5. You Can Have More Time to Find Help for Yourself and Your Kids

Depending on the circumstances, you may need qualified help for yourself and your children. If you file for divorce first, you have the time to get the right therapists, financial planners, evaluators, forensic accountants, etc., for emotional support and financial protection and undertake the necessary actions to prepare before the process begins. Moreover, you have a wide choice of attorneys before your spouse takes over the one you had in mind.

6. You Can Ask the Court for Temporary Orders before Your Spouse

As a petitioner, you submit your requests to the court first. Therefore, you have an opportunity to ask for temporary orders concerning your children, the marital house, or bank accounts before your spouse does it, potentially restricting your actions and rights.

7. You Get to Tell Your Side of the Story to the Court First

A petitioner always speaks first and last at the hearings. So, if you initiate the action, you can present your case to the court first, creating an advantageous first impression and setting the tone for the process. It is especially good if you have solid arguments and compelling evidence.

8. Planning Ahead Helps You Stay Calm and Not Get Too Upset

Even if your marriage has long been crumbling, the sudden appearance of a process server with divorce papers on your porch may come as a shock. On the other hand, if marriage dissolution is your own decision, even though it is unpleasant, you can avoid too many negative feelings and emotions. By setting your own terms and guiding the procedure, you gain control and a sense of empowerment.

The Disadvantages of Filing for Divorce First

While filing a Complaint for Divorce in Georgia before the other spouse does it may bring certain benefits, the adverse impacts of being the initiator of marriage termination must not be underestimated. Here are some disadvantages that must be considered:

1. You Have to Pay the Court Fees

Unless otherwise agreed by spouses in an amicable, uncontested divorce, a petitioner is always responsible for paying the initial court fees. Therefore, you should be ready to cover filing and sheriff’s fees for the service of process and all other related expenses. Nevertheless, you may request the court to waive your legal fees.

2. You Might Feel More Worried and Stressed

Initiating the divorce action may cause increased stress due to the feeling of guilt. You may blame yourself for the ruined marriage, worry about a negative impression you may give the court as an initiator of the breakdown, and torture yourself with other worrisome questions. Aren’t you too quick with the decision? Is it right anyway? Have you thought out every detail? How will it all proceed and end? What will be next? What about the kids?

Remember that any change requires adjustment. However, if you decide to end your marriage, you must have sound reasons for that.

3. Starting the Divorce First Could Make Things Worse between You and Your Spouse

There’s little chance that your spouse will be happy to get divorce papers unless you have a full-agreement, uncontested case. Therefore, conflicts are almost inevitable, making your relations even tenser, causing a communication breakdown, and complicating the process of negotiations and resolving important disputes concerning children and property. Besides, this tension may negatively influence your relations with friends, family, and even your children and affect your mental well-being.

Overall, the outcome of the marriage dissolution action is not affected by which spouse files for divorce first. Nevertheless, depending on the circumstances and your individual needs and goals, you may find it more advantageous to initiate the action. Yet, we recommend consulting with an experienced family attorney who can consider your situation and advise you on which way to choose.