Paul Horton: Should I file for divorce or wait for my spouse to file first?

Not too long ago, parties to any civil actions would race to the courthouse so that they could be the plaintiff, rather than the defendant. Being a plaintiff did carry many advantages back then, and still does today in some litigation. The fact is, that when you are the plaintiff, you are the first who gets to tell your story to the judge or jury, and you usually get the final word as well (in rebuttal).

Family law is different. Family law lawyers typically do not concern themselves with the race to the courthouse. There are exceptions, and I will get to some of those. In Utah, parties to a divorce are Petitioner and Respondent, not plaintiff and defendant. The petitioner is the individual who files the complaint for divorce. The petitioner will pay a filing fee of $318 ($8 for vital statistics). The respondent does not pay the initial filing fee. So in deciding whether you should file first or not, the decision is usually as simple as answering one question: “Do I want to pay the $318 to get the ball rolling now, or should I wait until my spouse files so that he/she can pay the filing fee?”

In other cases, it is not that simple. For example, if you and your spouse have been separated for a three months or more, and are living in different counties (or even states), whoever files first will usually get to decide where the divorce action is handled. That means that if your spouse lives in St. George, and you hire an attorney near Salt Lake City, then you are going to want to file your divorce on the sooner. Why? Because if your spouse in St. George files first, then the case will be handled in St. George and you are going to have to travel to St. George to appear in court. Furthermore, you are going to end up paying your South Jordan Lawyer money to travel clear down to St. George to make an appearance.

Another factor is to consider whether or not you can get divorced from your spouse without having to escalate the proceedings into a dog fight. If you and your spouse can get an uncontested divorce, then it probably does not matter where you file. Rushing into filing a case might hurt your chances of reaching an agreement without attorneys first, saving you a ton of dough.

Can I Get a Divorce if my Spouse Lives in Another State?

Yes. The legal term for this issue is called jurisdiction. So the question is whether the Utah District Court has jurisdiction over a person that does not live in Utah. That is, does the Court have the ability to enforce a decree against a person who does not live in the state of Utah.

A Court has jurisdiction over the divorce proceeding as long as one of the spouses has lived in the county for at least 3 months prior to the commencement of the action. You can read the statute here. That means that even if you have never lived in Utah before, but you and your spouse separated and you have been a resident of Utah for at least three months, the court is probably going to have jurisdiction over your spouse.

In cases where one spouse lives outside of Utah, different procedures must be followed. It is important that you find an attorney who understands these procedures whether your spouse lives in another state, or outside of the county.

When filing for divorce, you must “serve” the documents on your spouse. Your spouse then has 20 days to file an “answer”. However, if your spouse lives outside of Utah, the court will give him or her 30 days to answer. Additionally, in cases where spouses are living in different states, it is not uncommon for both spouses to file for divorce in their respective state. The court will generally defer to whichever case was filed first. This means that if you do not want to be in court in a different state, you better win the race to the courthouse.

Free Consultation with a Compassionate Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.