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Posted on February 4, 2025

What Are the Disadvantages of Filing for Divorce First in New York?

Filing for divorce first in New York may be an effective strategic move, but it can also come with unexpected disadvantages. While taking the first step might provide control over the timing and jurisdiction of the case, it also places the filing spouse under increased financial, legal, and emotional pressures. From the burden of covering initial court fees to setting the tone for potentially contested proceedings, petitioners must be mindful of how filing first may impact the overall outcome. Misunderstanding the potential drawbacks could lead to challenges in areas like property division, custody arrangements, and long-term financial stability.

If you’re considering a divorce in New York, it’s important to understand how filing first could affect your case. Consulting with experienced Manhattan divorce lawyers can help you make informed decisions and protect your interests throughout the process. The Law Office of Richard Roman Shum, Esq. provides dedicated legal guidance to individuals going through divorce and family law matters. Contact us today at (646) 259-3416 to schedule a consultation and discuss the best approach for your situation.

Timing Considerations When Filing for Divorce First in New York

Filing for divorce first in New York sets the legal process in motion and has several timing implications. When a spouse files first, they become the plaintiff (or petitioner), while the other spouse is the defendant (or respondent). The petitioner gains control over the jurisdiction in which the divorce is filed, provided they meet New York’s residency requirements. This choice can be significant if the spouses live in different counties or states, as it determines where the case will be heard.

New York law has strict residency requirements that must be met before filing a divorce petition. These include:

  • One spouse must have lived in New York continuously for at least two years before filing.
  • Alternatively, if the couple married in New York or lived there as a married couple, the one-year residency rule applies.

The filing date also affects financial matters. Automatic orders come into effect the moment the divorce petition is filed. These orders restrict both spouses from transferring assets, changing beneficiaries on insurance policies, or incurring new debts. Filing first ensures that these protections are in place sooner, reducing the risk of financial misconduct by the other spouse.

Financial Implications of Filing for Divorce First

Filing for divorce first in New York may often be an effective way to gain control over the process, but it also brings potential financial drawbacks. The plaintiff, or the spouse who initiates the divorce, must bear the initial costs of filing and could be responsible for temporary support orders and other expenses. Additionally, filing first does not guarantee financial advantages in the division of marital property and, in some cases, may put the filing spouse at a disadvantage.

The spouse who files for divorce is responsible for paying the initial filing fees, which in New York can total at least $335. Beyond filing fees, there are additional costs associated with serving divorce papers to the other spouse. These costs can add up, especially if alternative service methods are required when the respondent cannot be located.

The petitioner may also face legal fees sooner in the process, as hiring an attorney to prepare and file the necessary documents is often essential to avoid mistakes that could delay the case. While these costs are a necessary part of the process, they can place a financial burden on the filing spouse, particularly if the divorce becomes contested and requires extensive litigation.

Risks of Paying Temporary Spousal Support Early

When a spouse files for divorce, the court can issue temporary orders for spousal support, child support, and other financial obligations. The petitioner may be required to start making these payments early in the process, even before the final divorce settlement is reached.

Temporary support orders aim to maintain the financial status quo, but they can become a financial burden for the petitioner, particularly if their income is higher than that of the respondent. These orders may be based on preliminary financial information, which could result in overpayment until a more thorough financial review is conducted during the discovery phase.

For example, a petitioner who files for divorce may be ordered to provide temporary spousal support based on their reported income. If the respondent delays providing complete financial disclosures, the petitioner could end up paying more than they would under a final support agreement. Additionally, these payments can continue for months or even years if the case drags on, adding to the petitioner’s financial burden.

Potential Financial Disadvantages in Property Division

In New York, marital property is divided according to equitable distribution, meaning that assets and debts acquired during the marriage are split fairly but not necessarily equally. Filing for divorce first does not grant the petitioner any special advantage in property division. Both parties will have the opportunity to present their claims and evidence regarding marital assets.

However, filing first may create the perception that the petitioner is acting aggressively or attempting to control the process. This perception could negatively impact settlement negotiations, making the respondent less likely to agree to a fair division of property without a court ruling.

Emotional and Psychological Challenges of Filing First

Filing for divorce first may seem like a way to take control of the situation, but it comes with emotional and psychological burdens that the petitioner must bear throughout the process. The act of initiating a divorce can intensify emotional stress, create tension between spouses, and set a contentious tone for the proceedings. 

Emotional Strain from Initiating the Divorce Process

Filing for divorce is a significant emotional step, often carrying feelings of guilt, anxiety, and uncertainty. The petitioner takes on the responsibility of formally ending the marriage, which can be emotionally taxing, particularly if the divorce was not discussed or expected by the other spouse.

When one spouse files first, it may catch the other spouse off guard, leading to feelings of betrayal or resentment. This can escalate conflict, making it harder to resolve issues amicably. The petitioner may also experience regret or second-guess their decision, especially during periods of uncertainty in the divorce process. These emotional challenges can make it more difficult for the filing spouse to maintain focus and make clear, rational decisions throughout the case.

Increased Conflict and Strained Relationships

Filing for divorce first can increase the likelihood of conflict between spouses. Even if the filing spouse had good intentions, such as wanting to resolve the divorce quickly, the other spouse may interpret the action as hostile or aggressive. This perception can lead to defensive or retaliatory behaviors from the respondent, causing further emotional distress for the petitioner.

The decision to file first may also disrupt relationships with children, family members, and mutual friends. For example, children may struggle to understand why one parent initiated the divorce and may feel torn between their parents. Friends and family may take sides, leading to feelings of isolation for the petitioner.

The Psychological Burden of Leading the Process

The petitioner must carry the psychological burden of leading the divorce process from the outset. This includes gathering documentation, meeting filing deadlines, and initiating conversations about sensitive matters like child custody and property division. The pressure to be prepared at every step can be overwhelming, particularly for someone who is already dealing with the emotional impact of a failing marriage.

Custody and Parenting Time Concerns for the Filing Party

When filing for divorce first in New York, the petitioner may face unintended disadvantages when it comes to child custody and parenting time. While filing first can help initiate custody discussions early, it also places the petitioner under scrutiny from the court. 

Perceived Aggression Can Impact Custody Decisions

The spouse who files for divorce first may be seen by the court as more assertive or controlling, particularly if the filing appears sudden or unexpected. This perception could negatively impact custody decisions, especially if the court interprets the petitioner’s actions as prioritizing their own interests over the child’s best interests.

Family courts in New York prioritize the well-being of the child and aim to encourage both parents’ involvement. Filing first, particularly without prior discussions with the other parent, may give the appearance that the petitioner is less willing to cooperate on custody matters. This perception can influence the court’s assessment of each parent’s willingness to foster a healthy co-parenting relationship.

Risk of Losing Joint Custody if the Other Parent Files a Strong Response

New York courts favor joint custody arrangements unless one parent is deemed unfit. However, when one spouse files first, the other spouse has the opportunity to respond by building a case that demonstrates their involvement and commitment to the child. The respondent can use the time after being served to gather evidence and prepare arguments for joint custody or even seek primary custody.

Filing first doesn’t guarantee the petitioner any advantage in custody decisions. In fact, if the respondent successfully argues that the petitioner’s filing disrupted the child’s stability or that the filing was done without considering the other parent’s role, the petitioner may face setbacks in obtaining their preferred custody arrangement.

Potential Challenges in Establishing Temporary Custody Orders

Filing first often requires the petitioner to request temporary custody orders early in the process. These orders set the tone for custody arrangements during the divorce proceedings. However, petitioners may face challenges if they cannot immediately provide sufficient evidence that temporary custody in their favor is in the child’s best interests.

Challenges in Demonstrating Willingness to Co-Parent

Courts in New York place a strong emphasis on the willingness of both parents to foster a cooperative co-parenting relationship. Filing first can sometimes be interpreted as a sign that the petitioner is not open to collaboration, especially if the divorce filing is accompanied by requests for sole custody or limited visitation for the other parent.

The respondent can use this perception to argue that they are more willing to facilitate a positive relationship between the child and both parents. Courts often favor the parent who appears more cooperative and willing to compromise in custody matters. As a result, the petitioner may need to work harder to demonstrate their commitment to co-parenting after filing first, particularly if the respondent raises concerns about their intentions.

Anticipating the Consequences of Filing First

Filing for divorce first can shape the legal proceedings in significant ways. While it may seem like a proactive approach, it also comes with risks that could impact finances, parenting time, and court perceptions. Preparing for how the other spouse and the court may respond is essential to avoiding unexpected setbacks.

How Filing First Can Trigger Defensive Responses from the Other Spouse

Filing for divorce first often catches the other spouse off guard. This can cause the respondent to take a more defensive approach, leading to prolonged disputes over key issues such as custody, support, and property division. Defensive responses from the respondent can escalate conflict and make it harder to reach a settlement, forcing the case into prolonged litigation. Petitioners should be aware that filing first may lead to more aggressive legal tactics from the respondent, who may feel the need to “push back” to protect their own interests.

Potential for Losing Control of the Divorce Narrative

While filing first may initially give the petitioner control over the process, this advantage can quickly diminish once the respondent files a response or counterclaim. The petitioner presents their case first in court, but this also gives the respondent an opportunity to tailor their response based on what the petitioner has already presented. In some cases, this can shift the balance of the divorce narrative, allowing the respondent to adjust their strategy and undermine the petitioner’s initial claims.

Challenges in Predicting How the Court Will Rule on Key Issues

Filing for divorce first does not guarantee a favorable outcome in custody, support, or property division. Judges in New York family courts are required to consider the best interests of the child, financial fairness, and the unique circumstances of each case. As a result, petitioners should not assume that being first to file will give them an advantage in the court’s rulings.

Preparing for the Emotional and Financial Toll of a Prolonged Case

If the divorce becomes contested, the process can stretch out for months or even years. The petitioner, having initiated the case, must be prepared to handle the emotional and financial toll of prolonged litigation. Legal fees can mount quickly, and the ongoing emotional stress can affect both the petitioner and their family.

Preparing for a lengthy case may involve consulting financial professionals to manage costs and seeking emotional support to cope with the personal impact of a drawn-out divorce.

Aspect Advantages of Filing First Risks of Filing First
Control Over Proceedings Sets the stage and timing of the legal process. Potential to lose control once the response is filed.
Legal Strategy Opportunity to present the case first in court. Respondent can tailor their strategy defensively.
Emotional and Financial Impact Initiator can prepare mentally and financially. Prolonged litigation may increase stress and costs.
Outcome Predictability Perceived initial advantage in court. No guarantee of favorable rulings on key issues.

Filing for divorce first in New York can bring both advantages and challenges, but it’s important to recognize the potential disadvantages before taking that step. The decision to initiate the divorce process may impact custody arrangements, financial obligations, and the overall tone of the proceedings. Understanding these risks can help you make informed choices that best suit your circumstances.

At The Law Office of Richard Roman Shum, Esq., our Manhattan divorce lawyers are committed to helping clients face divorce proceedings with clarity and confidence. Whether you’re considering filing for divorce or responding to a petition, our legal team can provide personalized guidance tailored to your needs. Call us today at (646) 259-3416 to schedule a consultation and discuss your next steps.

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