Does it matter who files for divorce first in Washington State? Who files first probably will not effect your case much unless 1) the responding party levels emergent accusations against the party who filed first (uncommon), 2) the case goes to trial and is a close call (uncommon), or 3) one of the parties requests temporary orders (quite common).
The rest of this article provides a fuller explanation.
I. Is There an Advantage to Being Named “Petitioner” in a Divorce?
Judges and commissioners usually ignore who is named the “petitioner” – the party who filed the divorce. Washington is a no-fault state, meaning Washington courts are not allowed to consider who brought about the divorce when making most decisions.
One exception is if you make a claim about an emergency that conflicts with being the respondent, the party responding to the divorce. For example, the court might question your credibility if you are the respondent and claim the other side recently molested the children. Most rational parents would rush to the courthouse to protect his or her children from a child molester. This sort of emergency rarely arises in the real world. Generally, the court assumes the respondent was slower to file for divorce because he or she was trying harder to make the marriage work. In that sense, the respondent might actually be more likable from the court’s perspective.
The other small advantage to being the petitioner applies at trial. At the end of trial, the court permits the petitioner to make closing arguments first, followed by the respondent, and ending with a brief rebuttal from the petitioner. That is, the petitioner gets the first and last word on closing arguments. Research shows you want the first or last word if trying to persuade a listener, and the petitioner gets both.
Only about 5% of cases proceed to closing arguments, making this positional advantage minimal.
Many petitioners do gain a significant advantage over respondents however. This happens when the parties need temporary orders. The party who files the initial motion for temporary orders gains a significant procedural advantage, and the petitioner gets first crack at it.
II. Why Is the Petitioner Able to Move for Temporary Orders First?
The petitioner can (and typically does) file a motion for temporary orders at the same time as filing the divorce petition, the document that starts the case. If the petitioner takes advantage of that opportunity, the respondent cannot possibly file for temporary orders faster than the petitioner.
III. Why Is It Advantageous to Be the Party Who First Moves for Temporary Orders?
The moving party gets the first and last word with written submissions. Similarly, the moving party gets to orally argue first and last at the hearing on temporary orders. These positional advantages make it easier for the petitioner to persuade the jurist to side with him or her on temporary relief. The temporary relief, in turn, tends to affect the rest of the divorce proceeding.
Let us unpack that. The process of obtaining temporary orders usually takes about two weeks. First the moving party files a written request for temporary orders along with declarations and documents explaining why the court should side with him or her. This is the first chance to persuade the court. The opposing party follows with written responsive materials. The moving party then provides the court with a reply, rebutting the responsive materials. The reply is the last document. Hence the moving party has the first and last word in writing.
Similarly, the jurist invites the moving party to speak first at the hearing, followed by an oral response from the other party, and then a brief oral rebuttal from the movant. Finally, the jurist makes a decision on temporary orders. Again, the moving party receives the first and last word on oral argument, giving him or her an advantage in persuading the court.
The resulting temporary orders often set everyone’s expectations for the rest of the case. Any Guardian ad Litem, mediator, or trial judge sees the case through the lens of those original decisions, whether they are supposed to or not.
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