The question of who should “file” NC divorce papers first depends in large part on your unique personal situation and what is meant by “filing” legal paperwork. In North Carolina, when we refer to “filing for divorce”, you could be referring to filing for the absolute divorce, or filing for any of the other legal remedies you may be seeking (i.e. post-separation support, alimony, equitable distribution, attorneys fees, custody, child support, etc.).
If we are discussing the sole act of filing NC Divorce papers for absolute divorce after all of the other issues have been resolved, then it really doesn’t matter who files the paperwork. In most of these types of cases, the absolute divorce is filed as a “friendly” lawsuit, meaning that it is only filed because you need the court to grant the divorce and both parties want that – there are no contested issues.
On the other hand, if you have just recently separated or are thinking about separating, then the question of who should file NC divorce papers first is more important. From a purely legal standpoint, it doesn’t much matter who files NC divorce papers first. Both you and your spouse will have an opportunity to have your case heard, and at first glance, there does not appear to be any significant tactical advantage at trial to being the one that filed first. Practically, however, the party that files first is referred to as the “plaintiff” in North Carolina (in other states they may be referred to as the “petitioner” or even “Husband/Wife”), and the person receiving the documents is referred to as the “defendant” (in other states, they may be referred to as the “respondent”). This may be important to you.
Another significant difference is that the person filing NC divorce papers gets the opportunity to present their evidence first at the trial or hearing. Although very few cases actually proceed to a hearing or trial, if yours does, this could be a slight advantage, as your attorney will be the first one to tell your side of the story to the judge.
Additional reasons to file NC divorce papers first include:
- You have more time to prepare your financial disclosures;
- You may be able to have some say when the court date is for temporary matters;
- Your spouse will be served by the sheriff, which can be an unnerving process; and,
- You do not need to worry about when or if your spouse is going to file, and then scramble to respond to their complaint (you only have 30 days to respond to a lawsuit, which is a surprisingly short amount of time).
When I am counseling clients about whether to file a lawsuit or not, I look at a number of factors, including:
- Is the client in need of immediate financial support?
- Is there a substantial risk that the other party will hide or dispose of assets?
- Is there a risk that another party will flee with the children?
- Are the parties working together to try to reach an amicable settlement?
- Are the parties willing to voluntarily exchange financial documents without a court order?
- Are the parties able to work out a custody schedule on their own?
Generally speaking, if I have a client that is in need of immediate financial support, and their spouse is not voluntarily providing support, then I think it is more important to file a lawsuit sooner rather than later. In some counties in North Carolina it can take 6-9 months or longer to get in front of a judge for a hearing on temporary support. Most spouses that require support just don’t have the time to wait and see whether or not their spouse will voluntarily pay an appropriate amount of post-separation support or alimony. And even if they do, without a court order or signed separation agreement, there is nothing to prevent the paying spouse from unilaterally terminating those monthly payments whenever they wish.
However, in cases where both spouses are: working together towards an agreement, voluntarily exchanging financial documents, and working out a custody schedule on their own, then there is less of a need to involve the court system.