Texas Divorce News

It’s common wisdom that you want to be the first to file for divorce.

For most divorces, that’s probably true, because you have a jump on getting the process going, and the other side is forced into trying to play catch-up ball. For instance, you hire an attorney, get your ducks lined up, file a Petition for Divorce, get a Temporary Restraining Order, set a Temporary Orders Hearing for next week, and then have your spouse served. Then, your spouse has only a few days to find an attorney, meet the attorney, hire the attorney, and begin planning what will happen at the hearing. Catching the other side off-balance and seizing the initiative are good strategic reasons to file first.

But in Civilized Divorce, we don’t do things that way, and I used to say that there’s no reason to be the first to file if you’re going to be Civilized.

But I’ve changed my mind. I now think that there is a good reason to be the first to file. The goal isn’t to get the other side off-balance. The goal is to set the tone. Generally, a lawsuit is “driven” by the attorney that starts it. The filing attorney doesn’t have complete control of what happens in the lawsuit, but he has great influence over the direction. By deciding whether or not to have the other side served with papers, whether to set a temporary orders hearing, whether to obtain a Temporary Restraining Order, and whether to begin formal discovery, the filing attorney’s first actions (or inactions) make a powerful statement on how he or she would like for the case to proceed.