This is a matter of strategy and personal opinion, however if the divorce is contentious and you need temporary orders for child support or spousal support (alimony) then you should file first. Also and I think very important you get to speak first in court if your motions are first and you can set the pace and the tone of the process. You can take back control of your life if it has been stalled and you can regain control of your future. I like filing first if we are going to court. Take care and good luck.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.
It doesn't usually matter. Whoever files first gets to pay the filing fee, almost always higher than the fee for an appearance or an answer. The one instance where filing first would be worth the effort and cost is where immediate emergency orders for custody, support or protection of property are needed. The filing party may gain the upper hand by defining the issues and charaterizing the behavior of the other party, an offense that forces a defense.
Best wishes for a favorable outcome, and please remember to designate a best answer.
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Absent emergency circumstances, it does not matter who files first. The person who files first has to pay the filing fee ($220) and if the case proceeds trial, generally is the one who bears the burden of trial preparation which can escalate legal fees. In terms of whose case is presented first, it is the moving party. What that means is even if the other side files the Complaint and serves you, thereby designating them the Plaintiff, you can still file a Motion for Temporary Order first, if the other side has not done so. Where as you'd be the first in time moving party, you would be able to present your case before the other side despite the fact that you are the Defendant. As Attorney Lewis has stated, it is a matter of strategy, and while helpful at times, I generally do not find it to be all that important. Many times I prefer to be the Defendant because at Trial, you will likely have the opportunity to "re-prepare" when it's your time because you will be able to see what evidence has been presented.
This response is for informational purposes only and not intended to be legal advice; nor is this answer intended to create an attorney/client relationship. Legal advice and an attorney/client relationship can only be rendered after a full in person consultation has been conducted with an attorney wherein all necessary facts and circumstances are disclosed. To the extent additional or different facts exist, the within response may be different.
There is no advantage (assuming no circumstances that would otherwise cause it to matter) to letting your husband file first. The only benefit is that your husband will have to pay the $215.00 filing fee. If you want to get things moving and he is delaying, you should file first. Good luck.
This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.
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