Does It Matter Who Files for Divorce First?

As soon as one spouse files a petition in court requesting a decree of divorce, a divorce officially begins. A petition is a short legal document that summarizes who the parties are, establishes jurisdiction of the court, and details why a divorce is appropriate. The petition’s main purpose is to give the other spouse notice that a divorce is being sought. When considering divorce, a common question is whether there are any advantages to filing first. Below is an overview of the differences that arise in a divorce based on whether the spouse files for divorce or responds to a petition filed by the other spouse.

Ground for Divorce

In Kansas, there are three recognized grounds for granting a divorce, as laid out in Section 23-2701. First, a divorce may be granted for incompatibility. This is the most common ground for divorce, and it is considered a no-fault ground because there is no need to show any misconduct. If this is the ground for the divorce, there is no difference in whether the spouse files or responds to the petition. In order to find incompatibility, the only evidence the court requires is the testimony of either spouse. There are no defenses against incompatibility, as noted in LaRue v. LaRue. By disagreeing with the allegation of incompatibility in the petition, the responding spouse essentially proves that the spouses are incompatible and cannot agree.

The other two grounds for divorce differ slightly. These grounds for divorce make specific factual allegations that must be proven by the party that files the petition. The first ground alleges the responding spouse failed to perform a marital duty or obligation. Regarding the second ground, the petition may allege the spouses are incompatible due to one or both of the spouses’ mental illness or incapacity. If the filing spouse fails to prove the alleged facts or the responding spouse is able to create sufficient doubt that the facts are true, then the divorce will not be granted. There is nothing to be gained by filing on one ground over another. Therefore, the filing spouse will usually file on the grounds of incompatibility because if he or she filed under a different ground, he or she could theoretically fail to carry the burden of proving the alleged facts.

Differences Based on Filing or Responding

There is little difference in whether you are the spouse that files or the spouse that responds to the filing. An obvious benefit to file first is determining when the divorce proceedings will start. Besides the initial beginning of the litigation, there is generally not a lot of control over the timeline of the proceedings. The court determines scheduling and sets deadlines for discovery, mediations, and the trial itself. Thus, while the filing party can determine when proceedings begin, he or she cannot control much else.

If the case ends up at trial before the judge, the filing party will have a few advantages. First, the filing spouse’s attorney will be given the opportunity to speak first during opening statements. This means the attorney can set the state for the entire proceeding in a way that favors the filing spouse’s desired outcome. However, this advantage is diminished since divorces are tried by a judge and not a jury.

In addition, the filing spouse will get to put on his or her evidence first. Evidence in a divorce proceeding is usually done during direct examination by calling a witness to the stand to testify, including the spouses. The witness can testify about matters he or she personally knows about, and this information can be used to introduce documentary evidence, such as an appraisal for the value of the marital home. After the filing spouse’s attorney is done questioning a witness, the responding spouse’s attorney will be given an opportunity to cross examine the witness. The purpose of cross examination is to reveal other information the witness did not testify about during direct examination and to poke any holes in the testimony of the witness. This is commonly done by showing any bias the witness may have and introducing any contradictory evidence. For example, if the marital home appraisal that was entered into evidence on direct evidence was done by a friend of the filing spouse, the appraisal may be attacked. The responding spouse may then have an opportunity to enter into evidence a competing appraisal of the marital home, which may show that the home is actually worth substantially more. After the cross examination is finished, each side will have another opportunity to ask questions.

After the filing spouse has presented all witnesses and evidence, that spouse will rest his or her case. Next, the responding spouse will be given an opportunity to present any additional evidence to the judge. The process is the same as it was for the filing spouse, starting again with direct examination – this time done by the responding spouse’s attorney. Once the responding spouse has completed this process for every witness, that spouse will also rest his or her case. After both parties have presented all of their evidence, the case is then submitted to the judge to consider.

Finally, the proceedings end with closing arguments. This is the part where filing first has the biggest impact. The filing spouse’s attorney will begin by making half of his or her closing argument to the judge, reserving some time for a rebuttal. Then the responding spouse’s attorney will make their entire closing argument. After that, the filing spouse can use the time he or she reserved to rebut the closing argument made by the responding spouse’s attorney. Having the last word is a powerful tool for an attorney, However, the power is diminished slightly since the case is tried before a judge and not a jury.

Whether or not a party filed first for divorce will not decide how favorable the divorce terms will be. Filing first offers little in the way of controlling the process or gaining a tactical advantage. However, once you have made the decision to get a divorce, contacting an attorney quickly is the smart thing to do. Only after learning the facts of your case, can it be determined if filing first poses any advantages.