Does It Matter Who Files First in a San Diego Divorce?


Making some proactive moves during a divorce can give you an advantage and help make sure you do not face more of a burden than what is already involved in the process. It is one reason some people going through a divorce wonder whether filing the divorce petition first is an advantage or disadvantage. The answer to this depends, and it can sometimes be an advantage.

Filing first is rarely a disadvantage in the divorce process. California divorces are no fault divorces, which means that the person who files first is not required to prove that their husband or wife did anything wrong in order to be granted a divorce. So in this way, filing first does not present a disadvantage.

Why File First in a San Diego Divorce?

There are several advantages to filing first. One reason to file first would be to control the location where your divorce is handled. If you and your spouse live in different counties, or if your spouse has moved out of state, filing first can mean the divorce is handled in your county of residence. If the divorce is handled in your county, you would not need to travel for court hearings and other procedures.

There are residency requirements before you can file for divorce in a certain county, and before you can file for a San Diego divorce, for instance, you need to have lived in San Diego for three months or more and in California for six months. If you do not meet the residency requirement, you can file for separation first and amend to a request for dissolution of the marriage later.

When it comes to custody and support, filing first is not the final word on who gets what when the divorce is finalized. The judge decides how to award custody and divide assets based on factors set by California law. So ultimately, filing first does not affect these aspects of your divorce. However, in the short term, it can make a difference because your attorney can start working on making sure your interests are protected when it comes to marital property and custody.

In Emergency Situations

Generally, when you file for divorce, you can also file for custody and spousal support at the same time. If you need to file emergency orders for custody and spousal support, filing for divorce first could be an advantage because it could mean getting your children out of a dangerous situation faster. Keep in mind that these initial orders for temporary custody can be changed later to give the other parent visitation or even partial custody, and this decision will not likely be based on who filed for custody first.

Contact Us for Legal Assistance With a San Diego Divorce

If you are sure you want to file for divorce, you may have personal reasons to want to file the petition before your spouse does. While it may not make a big difference legally, filing first may be important to you. Before you make your decision, you should consult with an experienced divorce attorney who can better advise you on which steps to take. Contact JWB Family Law for a consultation with a compassionate and experienced divorce attorney in San Diego.

A Certified Family Law Specialist, or CFLS, is an attorney who has obtained certification in the standards of California family law and demonstrated optimal legal competence. Attorneys who obtain this certification have specific expertise in all aspects of family law, which includes divorce or the dissolution of marriagechild and spousal support, child custody, and temporary restraining orders, among other areas of emphasis.

Not every attorney practicing family law has obtained this certification. In fact, the designation remains relatively rare—there are fewer than 2,000 CFLS attorneys in California and fewer than 200 in San Diego.

When you work with JWB Family Law, you can rest assured that your personal family situation and concerns are being handled by a team that has the specialization and expertise you need to bring your issues to resolution.


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1620 Fifth Avenue, Suite 600
San Diego, CA 92101

Phone: 619.234.6123

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Temecula, CA 92590
Phone: 951.297.3871

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El Centro, CA 92243
Phone: 760.460.4608


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