Once you have decided to pursue a divorce from your spouse, the question may arise whether it matters if you are the first to file the divorce. The short answer is no, but there are some advantages and disadvantages to filing the petition.
Being the spouse who files the petition means that you have the option of deciding where to file for divorce. This can be important when you and your spouse live in different counties or different states, for many reasons including the convenience of not having to travel to a different county or state where your spouse filed for divorce. Of course, you cannot just file anywhere you like. You must meet the residency requirements for the state and county where you file. In order to file for divorce in Kentucky, either you or your spouse must have been a resident of Kentucky for 180 days. Usually, you should file for divorce in the county in which you live; otherwise you risk the case being transferred to that county anyway.
You should also keep in mind when deciding whether you should file the divorce petition the issue of court costs, including the filing fee, which varies throughout the state, but is $198 in Jefferson County. The spouse who does not file the petition, on the other hand, files a response, which is free to file. This filing fee also does not include other costs, such as hiring a special bailiff, which could be required if your spouse’s location is unknown or is evading service.
Filing the petition may give you the upper hand at trial. Most family law and divorce cases do not go to trial and are settled in mediation, which is generally more cost-effective than trial. However, a small percentage of cases do go to trial, and having filed the petition means that at trial, you will be able to present your case first, while the non-filing spouse will have to counter-argue and present his/her case second. You should not worry if you are not the filing spouse, though, because you will still be able to fully present you case.
Ultimately, however, which spouse files the divorce petition does not matter much, and the court will not take into consideration which spouse filed, as Kentucky is a no-fault divorce state, requiring only that the marriage is “irretrievably broken” as grounds for the divorce.
This is an update by Nathan R. Hardymon of a blog post “Is It Important Who Files Divorce Petition First?” originally written by Diana L. Skaggs in September 2006.