Should I File First? (Part 2)

January 2014Shoud I File First?


Filing for divorce

Filing for divorce or custody of a child is a personal decision.

As discussed last month, the decision of who files for divorce is usually a matter of personal decision. In many marriages, there is one party who thinks it can be worked out and obviously, that person will not file for divorce until satisfied that he or she has tried everything. In this case, the advantage to filing first is that the case actually gets filed. However, in other cases, both sides want to divorce, it is just a matter of one or the other starting the process.The party who files first is referred to as the Petitioner. The Petitioner pays the filing fee and court cost to get the case started- generally $350-400 in Texas. The Petitioner also has to hire a lawyer first without knowing (though many clients come in hoping or simply guessing) if the matter will be contested or uncontested matter. The later may be secured for a turn-key flat fee. Note: some lawyer´s no longer offer a set or flat fee for uncontested matters. I can only venture to guess that the reasoning is based on my own experience – 4 out of 5 clients who “think” the matter will be uncontested, are just being overly optimistic. In fact that experience has led me to change the way I contract with a client when he or she wants an uncontested divorce. Either the client pays the standard retainer, with an agreement the fee is capped IF the matter is indeed uncontested (the client gets a refund of the difference at the end of the case) or, the client pays the flat fee, my office drafts the pleadings but does not file it until the client and the other party come into the office and sign an agreed final order.

Most lawyers contract similarly and it is becoming more and more common to simply take a retainer and charge hourly for the services, even if the client believes the case will be uncontested. A discussion of cost can be found in my blog posted October 2013. Likewise, a discussion of attorney’s fees can be found in my blog posted November 2013.

Since the Petitioner does not know if the matter will be contested or not, he or she has to make a decision right off the bat to request temporary orders>/a> or to forgo that relief in the hopes of keeping things civilized. Keep in mind that if the Petitioner elects to not seek temporary orders and the Respondent wants to fight, the Respondent may request he Judge issue temporary orders, in which case the Respondent becomes the movant for that one hearing and gets to go first. However, only the Petitioner has the option of seeking ExParte Temporary Orders. If ExParte Orders are required – THE CASE IS NOT UNCONTESTED.< ExParte Orders are an extreme remedy usually requested commensurate with a Restraining Order or Protective Order.

ExParte Temporary Orders will be the subject of writing in the future.  (Read More Here) For the purposes of deciding whether or not to file first, the Petitioner is the only party that can ask for them. A Respondent – the party who did not file first, and therefore the party that has to respond to the divorce – can ask for Temporary Orders but can never ask for ExParte Orders because he or she knows there is a lawyer on the other side that must be notified.

Temporary Orders serve to keep everyone on the same sheet of music as so to speak.  The Temp Orders instruct the parties on who will have custody until the case is final, who will pay what bills, how the income will be divided and who will have use of the home, etc.  Again, either side can request these, but only the Petitioner can request ExParte Orders which do the same thing for just a few days and without the other side having any part or say.  Accordingly, IF YOU HAVE SUFFICIENT GROUNDS FOR AN EXPARTE ORDER there is a substantial advantage to filing first.

Otherwise, if there are not grounds for an ExParte Order or if the ExParte Order is denied, the advantage to filing first is:
1) the Petitioner knows when the case was filed – no waiting and wandering; and

2) the Petitioner gets to go first at the Final Hearing – this means the Petitioner and his/her Attorney get to decide who testifies first and thereby have some control over the pace of the proceedings when the Final Hearing is reached.
The disadvantage – if you want to call it that is that Petitioner has to pay the filing fee, start the process without knowing for certain how the Respondent will react, secure service on the Respondent (this is a cost of about $100), and very likely, the Petitioner ‘s Attorney will do most of the drafting thereby the Petitioner will incur more attorney’s fees.


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