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It’s really more of a preference issue. You’re going to be able to have your day in court whether you file first or file second. In some cases, the person who files first is more of the aggressor in the case and attempts to dictate the procedure. They’re what’s called the moving party. They file their complaint to start the case first, they often testify first, and they present their evidence in trial first. The other party has to react and file an answer. Of course, that other party could file a counter-complaint. The person who files first does, nevertheless, set the tone for the case and initiate the allegations that they want to bring that the other person would have to respond to initially before the other person presents their case.

So, there is some advantage in trying to control the narrative of the divorce, although the other person, with the help of their attorney, can rebound and present their own allegations or try to create their own narrative. Again, it’s really a preference issue.

In some cases, if you don’t file first, you’ll have to wait for the other person to come around and finally do what you want them to do, which would be filing. That means you’re in more control of the timeline of the case if you file first.

There might be a psychological advantage to filing first. Some people find that initiating the case feels like an accomplishment. Maybe they’ve been married for several years and just have to get out of the relationship. To them, filing is the right that they have to end the relationship, and it can give them self-esteem to take the initiative. It’s like saying, “I’m not going to play games anymore. I’m done with the lying and cheating. I’m done trying to work things out. I’m going to get the court involved.”

What Happens After One Party Files For Divorce Up To The Time The Divorce Is Finalized?

Once the divorce has been filed, the court will issue a summons within one to two days.

Once the opposing party receives the summons from a Sheriff or private process server, completed a required service of the complaint, the case will have officially begun. The party who served would file an affidavit of service, and the opposing party would be on notice and have about 30 days to respond. This process can be very efficient and take only a week or two depending on how available the other party is and whether a Sheriff or a private process server is used to serve the summons. It can take months if the other party refuses service or cannot be located. It can be hard to find people sometimes, especially if they have moved out of the state or have not been in contact with their spouse for months or years. Once the affidavit of service is filed, the court will schedule a scheduling hearing to take place about three or four weeks later. This scheduling hearing will set the dates for the rest of the case.

The timeline will depend on the circumstances; if it’s an uncontested divorce, it will occur within weeks of the scheduling hearing. If there are custody issues, a custody trial will be held within three to four months. There will also be a custody evaluation, which is when a social worker goes into the homes and evaluates the parties and the children. This process can take a couple of weeks, and is usually included within the timeline of getting to the status conference before trial. Depending on the amount of property to be divided (e.g. houses, cars, retirement accounts, etc.), it could take another six months to get a property trial. Of course, disputes can arise along the way, and there can be discovery each step of the way.

Cases involving custody and property issues can take a year to resolve, which includes mediation and status conferences before the trial date. There may be PL (pendente lite) hearings within a month or two of the scheduling hearing, and a status conference may be held about a month later. Many of the steps in a divorce case depend on different factors, whether there are children involved and the value of property being the ones that most influence the timeline.

Andrei Blakely

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