Does it Matter Which Spouse Files First for Divorce?

We are often asked whether there is any advantage to being the first one to file in a Texas divorce case.

There are a lot of rumours about this.

Take this quiz to see what you know about this subject:

1. TRUE or FALSE  The person who files first is the one who gets to stay in the marital home.

2. TRUE or FALSE   The person who files first pays the filing fee

3. TRUE or FALSE    The person who files for divorce first is the one who chooses the jurisdiction (state and county) where the divorce will be heard.

4. TRUE or FALSE   The person who files first gets to go first in presenting the case at the hearing or trial.

5. TRUE or FALSE    If you don’t file first in the divorce, you won’t have any say-so in when the hearings and final trial are set.


1.  FALSE.  There are a lot of factors to determine who gets to stay in the marital home during the divorce and how it will be awarded in the final decree.  Who filed first is not one of the factors considered.

2.  TRUE.  The person who files first pays the filing fee for a new case. However, the other spouse  (Respondent) may choose to file a counterclaim, which will mean paying a fee as well.

3. TRUE in most cases.   The spouse who files first will choose the county in which the case is filed.   There are some cases in which the other spouse can ask for the case to be moved, but these have very specific legal criteria and must be approved by the Courts.

4. TRUE.  This can create a strategic advantage but both sides will still get to tell their stories.

5.  FALSE.  The hearings are set based on the Court’s schedule, guidelines and rules of procedure, and agreement/availability of the parties and their attorneys.  Who filed first isn’t considered.

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