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Filing for Divorce or Child Custody: Should You Be First to File?

This is a common question.  Should I be first to file?  And if I do file first will the court hold it against me?  The surprising answer is (1) there is a tactical advantage (due to legal procedures in Georgia) to file first, and (2) no, a Georgia court will not hold it against you.  It is not critical to file first in every case, but in some cases, depending on the circumstances, filing first is a great advantage as will be explained below.

Beyond the tactical advantage, on substance, it is always best to file when the facts and circumstances are on your side.  Don’t wait for the other party to file if the facts and circumstances are on your side and you give the other party a chance to get their act together.  When it is time to move on a case, it is time to move.   

The Advantage for Plaintiffs

Georgia procedural law gives the Plaintiff, the term for the person who files first, an advantage in court.  Sometimes it is a dispositive advantage, meaning it is critical in determining the outcome in the case.  The tactical advantage in Georgia law is that the plaintiff, In your typical civil case, has the burden of proof to win their case.  As such Georgia courts provide the plaintiff these advantages: 

  1. The Plaintiff gets to put their case on first, without having to wait for the other side to finish; 
  2. The Plaintiff gets to make the opening statement at closing AND gets the final statement after the Defendant’s closing to get the last word in, in a case.   

These advantages can be significant.  As an example, the plaintiff can call up their witnesses at a hearing or trial first thing in the morning so everyone can get in and out.  Expert witnesses get to be called right away without having to pay them to sit around or to reserve an entire day or two of their calendars.  Meanwhile, the defendant has to put their case on hold until the often unpredictable time as to when the plaintiff will finish their case.  Witnesses may need to wait, sometimes multiple days, with no certainty as to when they may be called.  This experience can be inconvenient and unpleasant for witnesses, which can even turn hostile. Or they can forget or lose enthusiasm for their testimony.  And if your defense counsel asks your witnesses to be on call, they may not arrive in time for their testimony, and the judge may never hear from them.  This issue can be even worse for expert witnesses.

Disadvantages in Defense

Working as defense counsel in a matter long ago, we had an expert witness who billed an expensive hourly rate.  He was utterly critical to our case.  However, we could not have him testify until after the Plaintiff finished their case, which dragged on for three days (they originally said it would take a day).  To make matters worse, after each day, the case was continued to the next month.  So we had three days of trial, with one day of trial held in each consecutive month.  Thus, the Plaintiff put on three days of trial over three months and out witnesses had to be on hold the entire time period.  

What this meant for our expert witness, since he might be called on any day, was to place him on retainer for each day of the trial.  The expert witness required this because the expert has to block off an entire day of paid work to be available.  Three months later, after paying the expert three retainer fees, the Plaintiff finished their case, and it was our turn.  

After the investment in both time and money, our esteemed expert witness had their moment to shine.  Three months earlier, we had prepared the expert for testimony, and he assured us he remained ready and prepped to go.  However, by the time the expert witness got on the stand, he forgot some key facts after three months of waiting!  As the Defendant we had no choice as the Plaintiff originally announced less than a day of trial, and the court allowed the Plaintiff to go over their time announcement.  This is an extreme example, but it demonstrates the Plaintiff’s advantage in a divorce or child custody case.  

In other cases, on substance, you have to be first to file and become the plaintiff if the other spouse or parent of the child is removing, hiding, or dissipating assets, mistreating the child, won’t pay support, or anything else that needs immediate court intervention.  The court cannot intercede and issue orders until a case is filed and there is no option to wait for the other side to file first.

The Key Takeaways 

Despite these advantages, or sometimes even the necessity to file a divorce or child custody case first, people worry the court will hold it against them.  The answer is clear: 

  1. Initiating a divorce will not bias a court against you on any issue, whether the issue is equitable distribution of property or debt, alimony, ownership or possession of the home, child custody, child support, attorney’s fees, or on any matter.
  2. Initiating a child custody or child support or legitimation or paternity case will not bias a court against you on any issue.

Being the defendant in a case is not the end of the world, and we do not encourage anyone to file first if it is a case that you don’t want.  In most cases whether your plaintiff or defendant it won’t affect the final outcome of your case.  But there is a clear advantage to being plaintiff by filing first.  The court will not hold it against you, and if the divorce, child custody, or paternity or legitimation case is going to happen anyways, it is a reason to be first to file.  And most certainly, if the facts or circumstances are on your side, or you need immediate relief, you do need to file first and not let the other side either get their act together, or cause harm that you need immediate relief for.  

Do you want to know more about initiating a divorce or child custody case? 

We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com

Scott Shaw
Shaw Law Firm, PC
(770) 594-8309 (phone or text)
[email protected]