Who Should File for Divorce First?

When you divorce, you want justice in terms of division of property, alimony, and child custody.

You want to minimize the stress and strain of the divorce process.

How does filing for divorce factor into your goals? Does it matter who files first?

Our divorce attorney in Charlotte at Remington & Dixon, PLLC, explains what you need to know about filing first for divorce.

Does it Matter Who Files for Divorce First in NC?

Whether it matters who files for divorce first in NC depends on the specifics of your case.

Jurisdiction is determined by the party that files first. The spouse who files presents their case first. However, when it comes to child custody, spousal support, and property division, filing first usually isn’t critical.

Should You File for Divorce First in North Carolina?

It always makes at least some difference who files for divorce first in North Carolina – but the differences may be immaterial. It may make a small difference in your case, or it may make a large difference. Whether or not you should run to the courthouse depends on your situation.

What Are the Reasons to File for Divorce First?

There are several reasons that it may be important to be the first one to file for divorce:


Filing for divorce first might be extremely important if you and your spouse are in different places. Different states have different divorce laws, including child custody and alimony.

Sometimes, these differences are significant. The difference may mean many dollars exchanging hands over time.

In addition, the court that establishes jurisdiction is likely to retain it. If you may have post-divorce matters, like custody of minor children, you don’t want to have court in a distant location for years to come. Filing first can save you the hassle and the heartache.

Note: If your spouse is in a different location, it may be a situation where you should file your case as quickly as possible. Contact us right away.

Controlling the narrative

When you file first, you present your case first. That means you have some control over the narrative – what happened, why you’re getting divorced, and how the court should look at the situation. Both sides can present their case, but you’re the one the court hears first. Going first can put you on the offensive.

Stopping the dissipation of assets

A divorce may send your spouse scrambling to hide marital assets. A spouse may even wildly spend marital assets out of spite. When you file, you can ask the court for an injunction to stop either party from dissipating assets.


When you file first, you can prepare and plan. You can address your living situation, how child custody might work, and finances. Even if you suspect that your spouse is about to file, you should begin to prepare.

You’re called the plaintiff

If you file first, you’re forever called the plaintiff. Your spouse becomes the defendant. In the initial divorce and in any post-divorce proceedings, you’re the plaintiff, rather than the defendant.

If it matters to you, you should file first.

The possibility of default

When you file first, the other side has a limited amount of time to respond. If they don’t, they may default. Filing first starts the timeline and requires the other side to respond.

What Are the Disadvantages to Filing for Divorce First?

The downsides to filing for divorce first are that you have the burden to prove the grounds for divorce. In addition, filing first requires you to present information regarding the case first – showing your hand, so to speak. You may prefer to let the other side speak first and respond to them.

Do you get child custody if you file for divorce first?

Who files for divorce first doesn’t impact child custody. The court considers the best interests factors, which don’t include who files first.

Do you automatically get the house if you file for divorce first?

Filing for divorce first doesn’t mean that you automatically get the house. The court decides what’s equitable based on all the circumstances. Filing first may be a part of the overall picture, but generally, it doesn’t impact an award of the marital home.

Can filing for divorce first give you control over whether the divorce is granted?

Filing first doesn’t necessarily give the plaintiff control over whether the divorce ultimately happens. A defendant can file a counterclaim for divorce, which asserts their own desire to get divorced. The court will not voluntarily dismiss the entire case unless both parties agree to withdraw their claims.

Either spouse may go through with a divorce in North Carolina. You don’t have to worry about your spouse holding it over your head that they’re the plaintiff and they can grant or deny you a divorce – they can’t. The defendant can file their own counterclaim to ensure the divorce proceeds.

Talk to a Divorce Lawyer

If you’re wondering how filing for divorce first may impact your case, we invite you to talk to a lawyer. At Remington & Dixon, we help people file for divorce in the best possible way, including whether you should file first. Contact us today for your consultation.


Are consultations free?

While we offer a free consultation on traffic matters, criminal matters, and most professional license defense cases, we charge a fee for family law consultations to personalize our consultations to your specific needs. To learn about our fee structure, please get in touch.

Where can I get legal advice?

We recommend meeting with an attorney. While there is free legal help available for North Carolina residents from pro bono resources for civil matters, and public defenders for criminal cases, the best way to access tailored advice is to hire a lawyer.

Can I hire you if I’m in another state?

This is done on a case by case basis if you are involved in a family law, criminal, or professional disciplinary matter that involves another jurisdiction.



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