Filing for Divorce - "Race To The Finish"
I have had clients come in and ask whether it is better for them to file a Petition for Dissolution first. Client frequently believe that it is important to be the first to file. When asked what position is better, I always answer, “It depends.”
If a party is having an extra-marital affair, is it better to file first and go on the offense to dispute the claim? If one party feels they can no longer reside with the other party, but want to continue to be a major part of their children lives, should they file first and leave the residence? If they leave the residence, would the other party claim desertion or abandonment?
First, Colorado is a no fault state. Whether a party has “cheated” on the other during the marriage is completely irrelevant. Courts do consider extra-marital affairs if one party has used marital funds in furtherance of the affair, i.e. buying hotel rooms, expensive dinners, fine clothes, spa treatments, etc.. If a party has used marital funds in furtherance of the affair, the other party may seek reimbursement of those funds as part of the dissolution decree. This may be beneficial in offsetting any maintenance that might be owed.
As for abandonment or desertion issues, the only time the courts consider such issues occurs when one party completely abandons their family, which constitutes failure to provide financial support or a home for the abandoned family. Otherwise, the courts do not consider abandonment just because a party has vacated the marital home due to marital discord.
So we come back to the question of whether it is better to file first. Does on party gain an advantage in doing this? Not really. The courts do not given any consideration to one party over the other just because they filed the dissolution first. But why, you may ask, did you just say earlier, “it depends.” Well it depends on how much extra money you want to spend.
Whenever a court issues an order or when the parties stipulate to a matter, the courts, generally, request the petitioner’s attorney to prepare the order or stipulation. This occurs only when both parties are represented by counsel. If the petitioner is not represented and the respondent is, then the attorney for the respondent has the dubious honor of preparing the order or stipulation. In order to prepare the order or stipulation, an attorney may spend an additional two to four hours drafting the order or agreement. This results in extra cost to the petitioner or respondent if the petitioner is not represented.
The only time this rule is not implemented is when a party files a motion, like a motion to compel. In those cases, again generally, regardless of who filed the motion or who won, the moving party is responsible for preparing the order.
So there you have it. There is no tactical advantage to filing first, only perhaps an economic advantage.