Chase, Berenstein and Murray, Counselors at Law provides collaborative divorce solutions to clients in San Mateo, San Francisco and Santa Clara counties.

Common Divorce Questions: Does It Matter Who Files First in a Divorce Case?


Filing for divorce is an emotional time for the parties involved and can lead to decisions based more on feeling than fact. For example, the decision on who files for divorce first can be a difficult one, even if there is no legal advantage to doing so.

In California, it doesn’t matter who files first. California is a no-fault divorce state, meaning anyone who wants a divorce can get a divorce.  There is no legal significance to being the first to file. The person who files the divorce petition is called the Petitioner and the other spouse is called the responding party or Respondent. Other than whose name is listed where on the petition, there is no legal significance to being the Petitioner or Respondent.

Some Things to Consider in Filing for a Divorce

There may be some implications to consider, however, when it comes to filing first for divorce. For example, a party may have a preference for where the case is filed and may want to file first in that jurisdiction for that reason. This is an issue only if spouses are not living in the same county or state. But generally speaking, under California law, being the first to file for divorce doesn’t matter or give an advantage.

When it comes to emotions, however, filing first can make a big impact. In some cases, people feel very strongly that the person who wants or who asked for the divorce should be the person who files. Other people feel very strongly that regardless of who wanted the divorce, they want to be the person who files. These are emotional implications that might influence who files for divorce, but they have no legal significance in California.

Is There Any Advantage at Trial?

Another implication to consider is if the divorce case goes to trial. The petitioner, or the person who filed first, is the party who goes first at trial. The respondent follows with their case. In California, divorce cases are heard by judges, not juries. The judge will not be influenced by who goes first or second.  While some people believe it is more powerful to be the first person to open the trial and the last to close, being the petitioner with those options doesn’t offer an legal advantage in California.

There are other reasons the parties may end up in court even if their divorce case doesn’t end up having to go to trial.  For example, there may be interim hearings for issues such as child support, child custody, or spousal support.  Who goes first in those court hearings is the person who requested the hearing. It doesn’t matter whether they are petitioner or respondent, the spouse that asked for an issue to be ruled on by the court is the party that goes first in the hearing and has the option to offer the last arguments after the other party responds.

For assistance with a divorce that does not go to court,, contact us at Chase, Berenstein, and Murray, Counselors at Law.