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What are the Benefits of Filing First in a Divorce?

During a consultation, prospective clients often ask if there are any advantages to being the first one to file for divorce. Many people worry that filing first will lead the judge to believe that the filing spouse is the one “destroying” the marriage.  On the other hand, some people think that filing first will give them an upper hand by putting them in control of the divorce.  Neither of these notions is true.  The judge does not place any weight on the first to file issue because there are many reasons leading to the breakup of a marriage. The laws of Florida are applied equally to both parties, regardless of who initiated the proceedings.

When it comes to divorce in Florida, neither party is punished nor rewarded for being the first to file.  However, depending on your unique situation, there may be some strategic reasons to file first or to delay filing for divorce.

Importance of the Filing Date

The biggest effect filing for divorce has on the divorce proceedings relates to the identification of marital and non-marital assets.  Under Florida law, the date of filing is the date used by the judge to determine whether the assets and liabilities of the parties are either marital or non-marital.  This is important because any money earned or any debt incurred after the filing date is legally characterized as non-marital.


There are five types of alimony in Florida, and the type of alimony awarded to a spouse depends on a host of factors, most notably the length of the marriage.   Permanent alimony is often the first type of alimony that comes to mind when considering a divorce.  Timing of a divorce may be an important consideration because Florida law provides that there is a presumption of permanent alimony for a marriage of 17 years or more.  As a rule of thumb, the longer the duration of your marriage, the longer you can be required to pay alimony. So, if you are in jeopardy of paying alimony and you’re in a bad marriage, it would behoove you to file sooner rather than later. The opposite is true if you stand to receive alimony.

Financial Windfalls

If you are expecting a large bonus or other financial windfall such as an inheritance in the future, the date on which you file for divorce could have significant ramifications.  As explained above, the date of filing is the cut-off date for determining whether assets and liabilities are marital or non-marital.  Essentially, this means any money you receive after filing for divorce is yours, unless your spouse can prove you that actually earned it during the marriage.  On the other hand, debts such as credit cards are non-marital if incurred after the divorce is filed.

Preserving Evidence

If you are worried that your spouse is going to hide documents and or assets from you, then you may want to wait on filing until after you have discreetly investigated the family finances and copied or preserved all important documents.   Countless spouses have filed for divorce only to come home and find that their safe has been emptied or their documents and files are missing.  Assuming your spouse does not know you want to get divorced, making copies of all important documents and taking photos of valuable assets like jewelry can prevent an under-handed husband or wife from concealing marital assets or property.

If you have any questions about when to file for divorce or how the timing of a divorce applies to your specific situation, there is no better way to protect yourself and your assets than contacting an experienced family law attorney.  Feel free to contact me at 386-257-1222 or PeRice@RiceLawFlorida.com, and I’ll take it from there.