Is It Better To File For Divorce Before My Spouse Does?
Does it Matter Who Files for Divorce First?
A divorce officially begins when one spouse files a petition in court requesting a decree of divorce. The petition is a short legal document that outlines who the parties are, establishes the jurisdiction of the court, and outlines why a divorce is appropriate. The main purpose of this filing is simply to place the other spouse on notice that a divorce is being sought. A common question is whether filing for divorce first offers an advantage to the filing spouse. Below is an overview of what differences will arise in a divorce based on whether the spouse files or responses.
Grounds for Divorce
Kansas law recognizes three reasons for granting a divorce. All three of these grounds are laid out in Section 23-2701. First, a divorce can be granted on the grounds of incompatibility. This is by far the most common grounds for divorce and it considered no-fault because there is no need to show misconduct. When this is the grounds for divorce, there is no difference in the burden placed on the filing and responding spouses. The only evidence the court requires to find incompatibility is the testimony of either spouse. The court even noted in LaRue v. LaRue, a spouse cannot put up a “defense” against incompatibility: by disagreeing with the filing spouse’s allegation that the spouses are incompatible, the responding spouse only proves that the spouses can’t agree and are incompatible.
The other two grounds for divorce are a bit different. These two grounds make specific factual allegations that must be proven by the party that files the petition. First, the responding spouse failed to perform a martial duty or obligation. Alternatively, the spouses are incompatible because of one or both of the spouse’s mental illness or incapacity. If the party fails to prove the alleged facts (or the responding party creates sufficient doubt to make the judge believe these facts are more likely than not false) than the divorce will not be granted. Because the filing spouse stands to gain nothing by proving these facts and could theoretically fail to carry the burden and not be granted a divorce, almost every divorce will be filed on grounds of incompatibility.
Differences Based on Filing or Responding
Throughout the litigation, there is little difference brought on by filing first. One obvious benefit for the filing party is determining the start of the divorce proceedings. Outside of the actual beginning of the litigation, there is not a lot of control over the timeline of the case. The court will be the master of the scheduling and will be setting deadlines for discovery, mediations, and trial. Thus, the filing party can get the ball rolling, but not much else.
If a case goes to trial before the judge, the filing party will be given a few advantages. First, during open statements, the filing-party’s attorney will get to speak first. This allows that attorney to set the stage for the divorce in a way that favors their desired outcome; they set up a game they know they can win. Because divorces are always tried by a judge, not a jury, this advantage is substantially diminished, though.
Continuing with this theme, the filing party will get to put on its own evidence first. This generally takes place by calling a witness, including the parties, to the stand to testify. The witness can testify about matters he or she personally knows about, and can be used as a means of introducing documentary evidence such as an appraisal for the value of the martial home. Once the filing-spouse’s attorney is finished questioning the witness, the responding-spouse’s attorney will have a chance to cross examine the witness. The purpose of this examination is to uncover additional information the witness did not testify about during direct and to poke holes in the testimony of the witness. Common methods of doing this include showing bias the witness may have and producing contradictory evidence. For example, the appraisal that is entered into evidence on direct may be attacked if the appraiser was a friend of the filing spouse. The responding spouse may then put into evidence a competing appraisal that shows the home is worth much more, contradicting the appraisal produced on direct. Following cross, each side will get another chance to ask questions via re-direct (filing-spouse’s attorney) and finally re-cross examination (responding-spouse’s attorney).
After all witnesses and evidence of the filing-spouse are presented, that spouse will rest his or her case. Then, the responding-spouse will present any additional evidence to the judge. The process is identical to the filing-spouse’s case: (1) direct examination, now done by the responding-spouse’s attorney; (2) cross examination, now done by the filing-spouse’s attorney; (3) re-direct; and (4) re-cross examination. This process is repeated for each witness until the responding-spouse has presented all his or her evidence. At this point, that party also rests his or her case. As both parties have presented all evidence, the case is completely submitted for the judge to consider.
The final step of the process is closing arguments. Here is possibly the greatest advantage for the filing-spouse. The filing-spouse’s attorney will get to begin by making half of their closing argument. The responding-spouse’s attorney then makes their entire closing argument to the judge. Finally, the filing-spouse gets the last word, using whatever amount of time they reserved to rebut the closing of the responding-party’s attorney. Again, this advantage is somewhat diminished because the case is tried by a judge, rather than a jury. However, having the last word is always a powerful tool for an attorney.
Whether or not a party filed first will not decide how favorable a divorce’s terms will be. The “race to the courthouse” offers little in terms of controlling the process or gaining a tactical advantage. However, once the decision to get divorced has been made, contacting an attorney quickly is the smart thing to do. Only when the facts of your case are known can the correct decision regarding when to file or whether filing first poses an advantage be made by you and your legal counsel. If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas feel free to contact our office.
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