Does It Matter Who Files for Divorce First?

If you are considering filing for divorce in Maryland, you may be uncertain when balancing the emotional considerations of your spouse and children, as well as your own desire to protect your legal rights as a parent and your financial rights as a spouse. Do you need to be worried about winning the race to the courthouse? Does it matter in Maryland who files for divorce first?

Let’s discuss the difference between filing for divorce and responding to a divorce filed against you.

Do the Grounds for Divorce Matter?

You aren’t automatically able to file for divorce in Maryland just because you have decided your marriage is over. Recent years have seen the advent of Mutual Consent Divorce, and removed the waiting period for some couples who have a written agreement that resolves all issues related to their divorce. In most other cases, you will need to meet certain requirements before you are eligible to file for an absolute divorce.

If you do not have a written agreement that resolves all issues or you have not been physically separated for at least 12 months (living separately without sex and without sleeping under the same roof - for even one night), then before you can file for absolute divorce, you must have an alternate basis that permits you to make the request. These would include:

• Adultery
• A criminal conviction with a sentence of at least 3 years, at least 12 months of which have been served.
• Insanity in a spouse who has been in inpatient treatment for at least 3 years without hope of recovery
• Domestic violence, cruelty, or excessively vicious conduct to the filing spouse or his or her child, with no expectation of reconciliation

If the facts leading to your divorce occurred outside of Maryland, you may not be eligible to file for divorce until you have lived in Maryland for at least six months. If there are children involved in the divorce, in most cases the children would also need to live in Maryland for at least 6 months before Maryland would be deemed the child’s Home State and thereby eligible to determine issues of custody, parenting time, or child support.

If you have an agreement with your spouse and are divorcing under mutual consent or 12-month separation terms, it may not matter who files for divorce first.

When It Matters if You File for Divorce First

If you are filing a complaint for absolute divorce based upon contested grounds, the person who files first (the plaintiff) gets to tell his or her story first and this can set the stage for your entire divorce proceedings. Setting the stage or filing first can be very important when child custody, child support and use and possession of the family home are contested. Depending on the nature of the conduct and the circumstances, the reason for the break-up of the marriage can be considered in:

• Awarding alimony (financial spousal support)
• Child custody and parenting time (if the grounds affected the children’s wellbeing)
• Property distribution (if the misconduct affects your assets or the distribution)
• Awarding of attorney’s fees

When there are children involved in your case, or when you depend on the other spouse for your day-to-day living expenses, you may want to file for divorce as soon as you are eligible. Child custody determinations, child support calculations and alimony awards take time. It may be several months between the date you file for divorce and the date that the Court is able to make a decision in your case. The sooner you file for divorce, custody, or support, the sooner you are eligible for relief. The good news is that you can ask the Court to enter alimony or child support awards retroactively to the date you first filed. While the court process may take time, you may receive a judgment for the support that would have been received during the months you had to wait.

An experienced divorce attorney can help you craft your complaint, and your arguments to best reflect your circumstances and help you receive a fair resolution to your custody, alimony, and property disputes.

What Happens if You Can’t File First

While the judge is tasked with assessing the reasons for the break-up of the marriage in deciding a fair resolution to your complaint for absolute divorce, you are not out of luck if you place second in the race to the courthouse. Whether you are a plaintiff or defendant, your family law attorney can work to negotiate a fair settlement of your issues that doesn’t draw unnecessary attention to the reason for the divorce. By coming to an agreement on the divorce and its terms, you can minimize the effect of litigation and come to a custom resolution that works for you, your spouse, and your children.

At the Law Office of Shelly M. Ingram, our divorce attorneys know how to help you through the divorce process, whether you filed first or responding to your spouse’s complaint. We will help you understand the way divorce grounds can affect your priorities, and assist in negotiating a settlement that works for you and your family. Contact us today to schedule a consultation with an attorney.