Either the husband or the wife may file for divorce in Texas. Sometimes, when it appears that divorce might be coming, we are asked whether it matters who files first. The short answer is: it does. While the burdens of proof and presenting evidence do not change based on who files first, other, important, tactical factors will vary.
For example, the person who files first will usually get to present his or her case first at trial. This is an important advantage, because research shows that people don’t like to remain uncertain about an issue, but instead want to make a decision on the issues soon after starting to consider a controversy. And so, being able to present your case first works to sway the fact-finder, i.e. the Judge or the Jury deciding the case, to your side. This is called the “Law of Primacy.” It means that the information which we are exposed to first tends to sway us more than it would if it was presented later.
Another advantage of filing first is that you will get the last word in the Closing Argument. And, research shows that the last information that we receive is also more persuasive than most information earlier-presented information. This is called the “Law of Recency.” This is why Closing Arguments are powerful and important. And, if you file for divorce before your spouse does, then in most cases, you will get to present your Closing Argument first to the fact-finder, and then, to rebut the other party’s Closing Argument, thereby giving you the first and the last words in the trial.
Also, when you file your divorce case first, you can plan to file it when you are emotionally and financially ready to do so. And, at least in Texas, you get to choose on which of the available hearing dates (for Temporary Orders and the like) your initial hearing will be set. And, if it is possible to file your divorce in more than one Texas county, then you will get to choose the county where the case will take place. This could be important for several reasons.
But, if your spouse files for divorce first, then you will have to react to that filing. It will have already been filed in a county selected by your spouse (if it is proper in your case to file it in more than one county). The initial hearing will have already been set for a time that is convenient for your spouse and his or her lawyer, and not necessarily when it is convenient for you and your lawyer. And, your spouse will get to call the first witnesses, who will likely tell the story of your marriage according to your spouse’s version, rather than according to your version of events.
As with many contests, it is important to try to win tactical advantages. Filing your case first gives you some important ones.