Texas Divorce: Does it Matter Who Files First?

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Given the complexities of the divorce process, it is normal for individuals to grapple with various questions and uncertainties. One common query that arises is whether it truly matters who files for divorce first in the state of Texas. Typically, there is no inherent disadvantage to not being the first to file for divorce, particularly when you have legal representation. However, it's essential to understand that the divorce proceedings involve various factors that can influence the court's final decision. Let’s delve into the possible advantages that could be gained from filing first. 

Filing First: Is There an Impact?

Being the first to file doesn't automatically confer a significant advantage, however initiating the divorce proceedings provides an opportunity to shape the initial narrative. This can influence issues like child custody and property division. However, it's essential to recognize that the legal system aims for fairness, and the court evaluates both parties impartially.

Advantages to Filing First

Convenience: Venue Selection

In Texas, the initial petition for divorce must be filed in the county where either the petitioner or respondent has resided for at least 90 days preceding the filing of the petition. If you and your spouse are living in different counties, filing first allows you to choose the county where you reside. This decision is crucial, considering it may impact the convenience of proceedings, adherence to local rules, and familiarity with judges. Opting for the county where you live can be a strategic move when deciding whether to file for divorce first.

Taking the Initiative: Setting the Tone

Filing for divorce first empowers you to set the tone for the dissolution of the marriage. The manner in which the original petition is crafted can influence the overall atmosphere of the divorce proceedings. If your goal is an amicable resolution, emphasizing cooperation in the initial filing may foster a more harmonious process. On the contrary, if your spouse files first, they may choose a more aggressive approach, potentially leading to heightened conflict. By taking the initiative and filing first, you retain control over the narrative during the early stages of the divorce.

A Head Start: Timing Control

The date of filing initiates the divorce process in Texas, marking the beginning of the mandatory 60-day waiting period. As the petitioner, filing first provides you with control over when this process starts. Additionally, once the respondent receives divorce papers, they have until the Monday following 20 days from when the divorce papers were officially received to respond and file an answer and/or counter-petition. Filing first allows you to dictate the timing, potentially gaining a head start in the proceedings. This advantage is particularly significant if you intend to request temporary orders, such as temporary custody, child support, or exclusive use of the marital residence while the divorce is pending.

Priority in Court

Initiating the divorce process positions you to present your case first in court. This means you and your attorney take the lead in directing the flow of  presenting the evidence in Court at Temporary Orders and Final Trial.  Being the first to present your case can offer a strategic advantage, allowing you to set the tone for the entire proceedings. 

Disadvantages to Filing First

Financial Responsibility

When filing for divorce first, you bear the financial burden of the initial filing fee, typically ranging from $300 to $400. Additionally, you are responsible for serving the complaint on your spouse, a task that often requires hiring a sheriff, constable, or process server, incurring an additional cost of $50 to $100. While these expenses may seem relatively minor, they are factors to consider when deciding who should initiate the divorce.

Emotional Toll

Initiating the divorce process can take an emotional toll. Being the catalyst for divorce can be overwhelming, especially when it comes to sharing the news with family, friends, and even your children. Managing the emotional impact of this decision while also making crucial choices about your future can be challenging. If you choose to file for divorce first, having a robust support system in place and a well-thought-out plan for emotional management is essential.


In summary, while the decision to file for divorce first depends on individual circumstances, understanding these potential advantages and disadvantages can assist in making an informed choice. If you're contemplating divorce, consulting with the experienced family law attorneys at Coldwell Bowes can provide personalized guidance tailored to your specific situation.

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