Does It Matter Who Files for Divorce First in Minnesota?

does it matter who files for divorce first

If you’ve decided to end your marriage, you may be wondering whether you should file for divorce first or let your spouse make the first move. This is a common question that many people in Minnesota grapple with when facing the dissolution of their marriage.

In this article, we’ll walk through the advantages and disadvantages of filing for divorce first in Minnesota. We’ll also answer some common questions about how filing first impacts child custody, property division, spousal maintenance, and other key divorce matters.

Overview of Filing for Divorce in Minnesota

Filing for divorce is the first step in legally dissolving a marriage in Minnesota. Either spouse can initiate the divorce by filing a Summons and Petition for Dissolution of Marriage with the court. This legally starts the divorce proceedings.

The spouse who files the paperwork first is known as the petitioner. The other spouse then becomes the respondent. The petitioner must properly serve the respondent with copies of the divorce papers. This gives the respondent official notification of the proceedings.

Once served, the respondent will need to file a response with the court within 30 days, indicating whether they agree with the divorce terms or not. If both spouses agree on all terms, it can proceed as an uncontested divorce. When there is disagreement, they will go through a contested divorce process, which may involve attorneys negotiating terms or bringing unresolved issues before a judge.

Does Going First Provide Legal Leverage?

Many people wonder if filing first gives them an advantage in the divorce proceedings and settlement. The truth is, under Minnesota law, it provides very little tangible legal leverage.

Here are a few key things to understand:

  • Both spouses have equal rights in a divorce. Minnesota is a no-fault divorce state. This means it doesn’t matter which spouse files first or who was “at fault” for the marriage breakdown. Both spouses have equal rights to marital property and child custody.
  • The court has discretion. Ultimately, Minnesota judges have broad discretion in divorce cases. They aim to make rulings that are fair and equitable, regardless of filing order. Who files first does not sway their authority.
  • Temporary orders can be changed. The spouse who files first has a chance to request temporary orders for child custody, support, and more while the case proceeds. However, these temporary orders can be modified later if the other spouse contests them.
  • Settlement terms do not have to be accepted. One spouse filing for divorce first does not mean the respondent has to accept the proposed divorce settlement terms. Negotiations and mediations allow for revisions.

Essentially, under Minnesota law, you receive no preferential treatment or definitive edge by filing first, especially when it comes to the final divorce decree.

When Filing First Might Matter

Even though it provides limited legal advantage, filing for divorce first in Minnesota can still impact certain aspects of the proceedings:

  • Jurisdiction. It allows you to file in the county of your choice, which can be more favorable in custody disputes if your spouse moved away.
  • Temporary orders. As mentioned, it gives you the first shot at proposing terms for temporary arrangements regarding child custody schedules, child support, spousal maintenance, and property.
  • First impression. Being the petitioner allows you to craft the initial divorce petition detailing your side of things first. However, the respondent can contest your claims.
  • Copies of documents. The petitioner initially maintains key documents like tax returns and bank statements that will need to be shared during disclosure.
  • Legal fees. If uncontested, filing first can potentially limit legal expenses compared to prolonged disputes initiated by the other spouse.

While these factors might provide some advantage, it is often quite minimal in the grand scheme of the divorce settlement. Any terms or temporary orders can be disputed and revised later on in most cases.

Choosing the Right Time to File

Rather than worrying about a hypothetical edge, focus your efforts on filing for divorce when the time is right for you. Consider these tips:

  • Consult with a divorce attorney beforehand to understand the process and ramifications. This allows you to prepare your case properly.
  • If filing first, be organized and ready to produce the required documents. Rushing into it unprepared causes delays.
  • File once you have decided divorce is the best option and have a plan mapped out with your lawyer. Acting hastily without a strategy rarely ends well.
  • Take time to process your emotions so anger does not drive your filing decision. Making level-headed choices is critical during divorce.
  • If abuse was present, take safety measures when leaving the relationship and filing. Your attorney can help with restraining orders.
  • Be prudent if you think your spouse may file first out of spite. Talk to your divorce lawyer about the best response.

By thoughtfully choosing your timing, you can avoid rash choices and focus on an outcome that protects your rights.

Potential Advantages of Filing First

Filing for divorce first can provide some key strategic advantages:

You Get to Choose the Location

One major benefit of filing first is that you have the opportunity to select where you initiate the divorce process. This allows you to choose a courthouse and jurisdiction that is more convenient for you.

For example, say you and your spouse currently live in different Minnesota counties. As the first filer, you get to decide if you want to file in your county of residence or your spouse’s county.

While courts won’t allow outright “forum shopping,” filing first still provides more options when it comes to the location.

You Control the Timing

The person who files for divorce first also gains more control over the pace and timing of the initial process. You dictate when the proceedings officially commence.

Your spouse can’t file any requests until after they’ve been served with your divorce petition. At that point, the court takes over much of the scheduling. But filing first means you set the wheels in motion.

Make the First Move

In addition to controlling the timing, filing first means you make the opening move in the “divorce game.”

Your initial divorce petition allows you to make the first impression and present your side of the case upfront. This gives your family law attorney an early opportunity to establish facts and frame requests that support your position.

Get a Head Start on Prep

Since you know you will be filing for divorce, you can get a jump start on preparing your case and sorting documentation. This is especially helpful when it comes to gathering financial records, account statements, texts, emails, and other evidence.

First Shot at Temporary Orders

The person who files for divorce first also gets the first chance to request temporary orders from the court while the case proceeds.

These can cover issues like interim child custody and financial arrangements during the divorce process. It allows you to get needed protections in place proactively.

Potential Disadvantages of Filing First

While filing first has some clear advantages, there are a couple potential disadvantages to note as well:

You Show Your Hand First

A downside of filing first is that you have to present your initial asks and demands upfront in the divorce petition. This reveals details about your position to your spouse early on.

In contrast, if your spouse goes first, you have the benefit of seeing their demands before making counteroffers. There are strategies your divorce lawyer can use to mitigate this concern, but it’s something to keep in mind.

Additional Upfront Costs

Filing for divorce first also comes with some marginal additional costs. This includes the fees to file the initial petition and arrange service of process to your spouse.

However, these one-time filing and service fees are generally nominal compared to the overall cost of a contested divorce. And they may be worth it to gain the advantages of filing first.

Is an Uncontested Divorce Possible?

Ideally, you will be able to file an uncontested joint petition for divorce with your spouse. This is often called a no-fault divorce.

With an uncontested divorce, you and your partner mutually agree on all aspects of your divorce decree – including property division, spousal maintenance, and parenting time arrangements.

By reaching a compromise upfront, you avoid prolonged fights, expensive litigation fees, and the stress of court battles down the road. You maintain more control over the outcome as co-petitioners.

However, it takes two willing participants to make an uncontested divorce work. If your spouse is unlikely to negotiate in good faith, filing together may not be realistic.

Leveraging the Legal Process Fairly

While being the first to file for divorce in Minnesota does not provide much outright legal advantage, consultants at Martine Law explain how petitioners can still utilize the process fairly:

  • Be proactive and cooperative: Quickly fulfill requests for documents and information. Extend courtesies like allowing your spouse time with the children while proceedings commence.
  • Be strategic and firm: Craft your initial petition wisely and stand firm if your spouse proposes unreasonable terms. Document everything thoroughly.
  • Be thoughtful and empathetic: Recognize this is emotionally difficult for both of you. Demonstrate understanding when resolving disputes.
  • Be patient and poised: The legal process takes time. Avoid overreacting if hearings or negotiations stall. Keep communicating properly.
  • Be honest and consistent: Provide complete transparency around your finances and reasoning. Stick to the facts.

Through a combination of these approaches, petitioners can leverage the proceedings effectively while upholding what is moral and lawful.

Consult an Experienced Divorce Attorney

While filing for divorce first in Minnesota does not provide a major legal advantage, it can still influence how the proceedings unfold. Weighing the potential pros and cons takes guidance from an experienced local divorce attorney.

The team at Martine Law has extensive expertise in Minnesota divorce law and process. They can advise clients on the intricacies of filing first or responding to a spouse’s petition. Their attorneys will build a comprehensive legal strategy around your unique situation while protecting your rights through fair negotiations.

If you are considering or planning a divorce in Minnesota, contact Martine Law today to schedule a consultation. Their seasoned lawyers will answer your questions, explain your options, and ensure you receive the best possible outcome.

Author Bio

Xavier Martine

Xavier Martine is the Founder of Martine Law, a Minnesota criminal defense and family law firm. Serving clients in Minneapolis, MN, and surrounding areas, he is dedicated to representing clients in a wide range of criminal matters, including DWIs, drug charges, misdemeanors, domestic violence, and other criminal charges. He also represents clients in family law matters, including divorce, child support, and child custody.

Xavier received his Juris Doctor from the Mitchell Hamline School of Law and is a member of the Minnesota State Bar Association. He has received numerous accolades for his work, including being named among the “Top 10 Criminal Defense Attorneys Under 40 in Minnesota” in 2021 by The National Academy of Criminal Defense Attorneys. He was also named the “Best DUI Lawyer in Minneapolis” award in 2023 by and a “Rising Star” in 2023 by SuperLawyers.

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