Texas is one of a handful of U.S. states that is a “community property state.” This means that the assets and property acquired during the marriage are generally considered to be owned 50/50 between spouses.
Therefore, if you are wondering, “Does it matter who files for divorce first in Texas?” the answer is that there is nothing in the law that inherently favors either party. However, there are still advantages afforded to the person that initiates the divorce.
Let’s examine the advantages of being the party that files for divorce. First, though, it’s important to understand the role assigned to each party in the divorce process.
Establish the Petitioner and Respondent in a Texas Divorce
In Texas, the petitioner originates a divorce, and the petitioner will name the respondent to the divorce. This is important because you and your spouse cannot jointly file a divorce together, even if the divorce is amicable and agreed upon by both parties. One party must be the petitioner, and the other party must be the respondent.
If you are the petitioner, then you will file an Original Petition of Divorce. This petition will include specific information such as:
- The grounds for the divorce (Texas is a no-fault state where neither party has to be at fault to proceed with a divorce.)
- Whether you have children through the marriage
- The level of discovery that will be required during the divorce process
- The jurisdiction where you are filing for divorce
- Other pertinent information that you will need to provide
Your spouse will then be served with divorce papers – unless they waive their right to be served. (That decision carries its own set of consequences, as we cover in this article.)
Those are some of the initial steps involved in the divorce process in Texas. As the petitioner, there are certain advantages of being the person to initiate the divorce legally.
Advantages of Filing for Divorce First in Texas
In general, the petitioner has the opportunity to set the tone of the divorce. You state the grounds for the divorce, you can make certain requests regarding child custody and possession, you can ask the court to make appropriate provisions for child support, and you can provide other information from your perspective.
For example, the petition for divorce includes a section on “Possession of and Access to the Child/ren (Visitation).” You can use this section to make specific requests to the court about visitation orders for your spouse.
In this section, you can request that the other party have standard visitation rights, or you can claim that standard visitation would be “unworkable or inappropriate.” You then have the opportunity to explain why possession and access to the children is not a good idea (e.g., you are concerned about the safety of your children with your spouse).
You should expect that you will eventually have to defend these claims in court by providing ample evidence. However, you can set the table at the outset as the petitioner.
Do You Need to Request a Temporary Order?
Another advantage of originating the divorce petition is that you can request a temporary order restricting your spouse’s actions if needed. This order will protect the property and assets in the marriage and/or the people involved in the divorce (yourself and/or your children).
– Protecting property: When filing the petition for divorce, you can simultaneously request that the court issue a restraining order preventing your spouse from selling assets, hiding assets, draining bank accounts, damaging property, incurring exceptional debts, or performing other actions that would negatively impact the value of assets and property that will be divided during the divorce.
With Texas being a community property state where assets are expected to be divided evenly, taking this action will help protect your interests as you prepare to launch into post-divorce life.
– Protecting people: You can also petition the court to issue a protective order that would protect you and/or your children from harm.
If your spouse has displayed aggressive behavior that has caused you to fear for the safety of you and your family, then you can request a temporary restraining order (TRO). This temporary order will set you on the path to obtaining a protective order that will provide you with a greater level of protection.
Work With a Family Law Attorney to Support Your Divorce Filing
While Texas law is designed to not show favoritism to either party in a divorce, there are certainly advantages to being the party that files for divorce first. As an expert in family law, I can help you arrive in the best possible position going through the divorce process.
– For petitioners: If you are the petitioner that initiates the divorce, then I can help you complete the Original Petition for Divorce, walk you through the divorce process to set expectations, help you start the process of gathering evidence, and represent you throughout the divorce process.
– For respondents: If you are the respondent that is concerned about your position in the divorce process, I can also help you. I will defend your rights in the divorce, work hard to protect your assets, and help you enter post-divorce life in the best possible position.
As a family law attorney, I have helped countless petitioners and respondents navigate the legalities of a divorce in Texas. If you live in Fort Bend County, Brazoria County, or Harris County, then I recommend that you contact me to discuss your situation.Call my offices at 281-944-5485 or 979-267-7660 to further discuss why it matters who files for divorce first in Texas. I am here to help you throughout this process.