In Colorado, Does it Matter Who Files for Divorce First?

Divorce is rarely an easy decision, but when it becomes an inevitable conclusion, regardless of the circumstances, one party must make the first legal move forward. In Colorado, whether one spouse wants a divorce and the other doesn’t, or both agree that their marriage has ended, only one person can file the petition. When spouses must part ways, the question of who should file for divorce first is a frequent concern brought up to divorce lawyers during an initial consultation.

Because Colorado doesn’t require grounds for divorce other than a marriage that’s “irretrievably broken,” it no longer means that one party has been wronged and the other is at fault when one spouse files the petition and the other is served with papers. For that reason, fault and blame no longer come into play when choosing whether or not to file first. Instead, weighing the decision should involve understanding some of the pros and cons of being the first to file.

The Petitioner May Be Better Prepared

Divorce is never easy, but when you are the spouse who files first, you have time to prepare for living apart. This means you can take the following steps before filing for divorce:

• Find a new residence if you don’t plan on retaining the marital home, or a temporary residence if necessary until your spouse moves out 
• Make any necessary changes to your career or to your work schedule at your existing job
• Start a separate bank account
• Begin new, individual accounts for services like your cell phone, WiFi, and streaming services
• Preserve evidence you may need for deciding custody matters
• Gather all relevant documents and financial information for disclosure

By being the spouse who makes the first move, you have the advantage of being well-prepared rather than scrambling to catch up to a spouse who prepared ahead of time.

Further Advantages of Filing for Divorce First in Colorado

Besides being well-prepared in advance, there are several important advantages you can enjoy by being the petitioner rather than the respondent in the divorce including:

• Choosing the jurisdiction. By being the petitioner, you can file in your own jurisdiction which means you won’t have to travel for any of the divorce proceedings. This is an advantage if your spouse has moved away or out of state during the separation.
• You have an advantage in the timeline of the divorce. When you are the one who files first, you have the opportunity to take your time in the details of the petition. 
• The spouse has 21 days in which to respond if they live in Colorado or 35 days to respond if they’ve moved out of state. This gives them a limited number of days to form their responses to the details of your petition.
• You can include requests for temporary relief. The petitioning party has the option of including requests for temporary child support, spousal support, and an order to freeze marital assets if you feel that your spouse may try to hide assets prior to the division of property.

Are There Disadvantages to Filing for Divorce First in Colorado?

Being the petitioner in a divorce means that you have to pay the filing fees on top of any attorney’s fees. It also means your spouse is now alerted to your demands, so they may begin to attempt to hide assets and form responses to undermine or counteract anything you detailed in your petition.

If you have a history of domestic abuse in your marriage, filing divorce papers could place you at significant risk if your spouse is volatile. If you believe you could be in danger from an angry spouse, prepare before the papers are served by speaking to your attorney about restraining orders.