Is It Important Who Files Divorce Petition First?

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When clients ask whether it matters who files for divorce first, we generally say that divorce lasts a long, long time, and no one should file first to get a leg up. We may add that if a case goes to trial, there is a school of thought that the rule of primacy favors a petitioner who is allowed to present his/her case first and generally gets the last word. But the vast majority of cases settle and this tiny advantage in no way should influence whether and when a divorce petition is filed. So, it was interesting to see the Georgia court realign the parties to a divorce, so that the party with the greater burden of proof was substituted as the petitioner. Georgia still has jury trials in divorce last I heard, so that may make it more important there, but there does seem to be some soundness to the idea. For example, when there are substantial nonmarital claims, and all property is presumed marital, perhaps a motion to realign the parties could substitute the party with the higher burden as petitioner. Family Law Prof Blog has a post and link to the Georgia case.

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