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Who files first?

When you are ready to proceed with a divorce, the first question to consider is which of you s going to file.  There are strategic advantages to being the first to file.

First, you get to determine where the divorce will take place.  As the plaintiff, if there is any option, you decide the venue where the divorce will proceed.  Georgia law generally requires you to file where your spouse has resided the last six months.  Although your spouse may have recently moved, the six-month residency requirement governs the filing.  Many parties have already separated and are no longer residing in the same household at the time the divorce is filed.  During your separation you may live in a different county, state or country from your spouse.  By being the party to file, you sometimes get to determine what is the most convenient forum for the divorce.

Second, you get to determine when the divorce will take place.  When you file your complaint for divorce your spouse will either acknowledge service of the complaint or be personally served by a sheriff or private process server.  Upon your spouse either acknowledging service or being personally served, the 30 day time period begins in which your spouse must file their answer to your complaint either admitting or denying your allegations.  Your spouse also has an opportunity to counterclaim for divorce and ask the court for relief.  By filing first, you get to start the timeline of the divorce proceeding.

Third, your attorney gets to give the first opening statement and the last closing argument at trial.  As the plaintiff in the divorce case, your attorney presents your perception of your case first.  By filing first, your attorney has the opportunity to exert more control in the courtroom by framing your case from what you need the court to know, which can be advantageous to your case.

At The Manely Firm, our policy is to always be plaintiff, whenever possible.  That is how advantageous that approach is.   If you aren’t quite certain it is time to divorce, just know that your spouse may also be considering a divorce.  It doesn’t help you to hand the power to your spouse to be the first to file.    As is often the case, proactive rather than reactive wins the day.

Cara Schlosser

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