When filing for divorce, many unhappy spouses in North Carolina wonder if it matters who files first. The answer is it depends on the specific circumstances. In many divorce cases, it does not make a difference who files first.
If you are considering ending your marriage, you should seek the guidance of an experienced Raleigh divorce attorney. At Charles R. Ullman & Associates, our divorce lawyers offer clients strength, compassion, and a clear view of the road ahead as we help you navigate the legal separation and divorce process. We want to help you anticipate the legal issues that arise during a divorce so you can confidently move forward.
Family law attorney Charles Ullman is certified by the North Carolina State Bar as a Specialist in Family Law. Charles Ullman & Associates represents clients in Raleigh, Apex, Holly Springs, Fuquay-Varina, and across Wake County. Please reach out to us today to discuss how we can assist you.
Who Should File For Divorce First? The Advantages
Seeking a divorce involves filing a divorce petition, which is served on your spouse by a sheriff’s deputy.
By filing first, you are setting the process in motion, and you can set the tone of the divorce. In the petition, you can show that you mean business — or you can show that you just want out of the marriage. North Carolina allows for no-fault divorces. You do not have to state a reason or prove the other spouse was at fault to obtain a divorce in North Carolina. That can reduce the conflict and strife in the divorce process.
The spouse who files first is the plaintiff, and the other spouse is the defendant. Your complaint will list your demands, such as for custody of your children, spousal support, or certain property or assets. Assets and property acquired during your marriage are considered marital assets and are subject to equitable distribution in North Carolina.
If the divorcing couple can agree on contentious issues such as asset division, child custody, and alimony, then you can submit a proposed agreement to the family law court for approval. An experienced divorce attorney can help negotiate a separation agreement that can be incorporated into the divorce decree.
When It Might Be Crucial to File First and Stop an Abusive Spouse
If there has been abuse in the marriage, whether spousal abuse or against children, filing for divorce is an opportunity to obtain protection.
If your divorce complaint includes allegations of abuse, you will be granted an appearance before a judge to seek a protective order without the other spouse present at the hearing.
A temporary protective order — often called a “restraining order” or 508B order — is good for 10 days. Then a second hearing must be held, which your spouse has the right to attend and dispute the charges. At that hearing, an attorney can help you make the case for a domestic violence protective order (DVPO) that is effective for one year and renewable after a year. We can also help you obtain additional protection against domestic violence.
Filing first is also a good idea if you suspect that your spouse plans to move out of state with your children or might try to hide or spend down marital assets that should be split in a divorce. Filing first gives you the opportunity to seek an injunction that prohibits your spouse from moving out of state with the children or dissipating your assets.
When you file first, you and your lawyer choose the location where the divorce case will be heard. Jurisdiction is typically determined by the party that files first. The jurisdiction can be important if you and your spouse are residing in different states that have different rules regarding divorce. You want to choose the jurisdiction where the case is heard if possible.
The Potential Drawbacks of Filing for Divorce First
In states that have fault-based divorce, the spouse who files for divorce first may have the burden of proving faculty in the divorce, such as a spouse’s adultery.
Since North Carolina has no-fault divorce, you do not have to prove marital fault to obtain a divorce.
If you file first, there will be an emotional response to your having formally asked for a divorce. Your spouse may be hurt (or act hurt), which might make you feel guilty. Even if you seek a no-fault divorce and make no demands, your spouse could take an aggressive stance and hit back hard with their response. But we can help you prepare yourself.
You may have an unexpected emotional response if you are the first to file for divorce. It can be tough to admit that your marriage has failed, even when you truly want it to end.
We’ll have talked long enough to know why you want a divorce and that you are proceeding with your eyes open, but ending your marriage should not be taken lightly.
The spouse who initiates a divorce has the financial obligation to pay the filing fees and court costs upfront.
If I File For Divorce First, Do I Get Custody? Misconceptions About Filing First
There are no legal advantages to being the first to file for divorce in North Carolina in terms of being awarded custody. When hearing child custody disputes, a North Carolina family law judge is legally required to consider what is in the best interest of the children.
Meet With a Compassionate N.C. Divorce Attorney
If you are facing the end of your marriage, an experienced divorce attorney from Charles R. Ullman & Associates in Raleigh, NC, can help you. Whether you are just trying to determine what is best for you and your children or you are dealing with an emergency situation, we will treat you with respect and genuine compassion and provide legal counsel based on extensive experience.
We know you are going through an emotionally difficult experience and may not know exactly what to expect. In the initial consultation, a divorce lawyer will seek to understand what you want to achieve and to explain North Carolina law as it applies to your specific situation. We will talk about what is most important to you and your loved ones as you move forward. The consultation is confidential.
Charles Ullman & Associates can guide you through the divorce process and move forward with your life, just as we have for countless clients over the years. If you are ready to schedule a confidential consultation with our Raleigh divorce lawyers, contact us by calling us at (919) 829-1006 or by using our online contact form.
