Does It Matter Who Files for Divorce First?
While spouses have relatively equal rights in divorce court, certain legal balances can be tipped in favor of whoever files first. But don’t despair if your spouse wins the courthouse race. There are steps you can take to protect your interests after you receive your spouse’s divorce filing, and we can help you act quickly. Our attorneys at Mills & Anderson are highly experienced, straightforward, and well-rated by our clients. Talk to us right away by phone or online to set up a case review.
Spouses’ Rights in Divorce Court
Before we discuss the potential importance of filing first in your divorce case, we should go over what a divorce involves. In general, Nevada divorce courts make orders regarding the following:
- The division of a couple’s property and liabilities,
- Alimony,
- Child custody, and
- Child support.
Below, we briefly discuss a spouse’s rights in regard to each of these issues and how filing first might affect a divorce case.
Property and Liability Division
Nevada is a community property state, meaning that most assets and debts spouses acquired or incurred during the marriage are divided equally in a divorce. However, the court might make an unequal distribution if there are compelling reasons for unequal division.
Alimony
In Nevada, the court can award alimony to either spouse if the award is equitable and just. Before making its decision, the court might review several factors, such as:
- Each spouse’s financial condition,
- Each spouse’s marketable skills,
- The standard of living during the marriage,
- The length of the marriage,
- The age and health of each spouse, and
- The contributions each spouse made to the couple’s property or each other.
If the court orders you to pay alimony, you may be able to modify the order if circumstances alter your income by 20% or more.
Child Custody
In general, divorcing spouses who share children have equal rights to physical and legal custody of each child they share. Once a divorce or custody case is open, the court can give primary physical or legal custody to either parent if it determines that primary custody would be in the child’s best interest.
Child Support
If your divorce involves a child custody determination, then it also involves a child support determination. Typically, a child support obligation for each child is based on the parents’ financial resources and the child’s needs. Also, a child support obligation tends to last until the child turns 18 (or 19 if they are still in high school).
Why Does It Matter Who Files First for Divorce?
If many spousal rights are equal under Nevada’s divorce laws, why does it matter who files first for divorce? Filing first can give you the advantage of having the best notice about divorce proceedings and controlling where the proceedings occur. So, let’s go over Nevada’s notice and venue rules for divorce and how they might affect you.
The Advantage of Choosing a Venue for Your Divorce
Under Nevada law, you can file for divorce in any of the following counties:
- Where your spouse lives,
- Where you live,
- Where you and your spouse last lived together, or
- Where your divorce claim accrued.
Nevada is the 7th largest state in the nation, so the distance between the county where you live and where your spouse lives could be vast. If you file for divorce first, you can choose the court closest to you. Attending court close to home can greatly decrease the amount of time, money, and stress you’d experience from traveling to and from a distant court. A closer location could also mean that you have a better chance of getting the witnesses you need to testify to show up for court.
Also, if the court in your county has judges who likely won’t be sympathetic to your situation, you may want to choose a county that has a more favorable panel of judges. Once again, you can control this choice by filing for divorce first. You might be unsure about what county has judges who are most likely to understand your arguments and issues. The attorneys of Mills & Anderson, with decades of combined experience, know this information—as they have appeared all over the state—and they can advise you.
However, do not worry if your spouse files first and chooses a venue that is inconvenient for you. You have options for changing the location for your proceedings, but you must act quickly. You have 21 days after receiving a divorce complaint to submit your answer. Before the 21 days to answer expire, you can file a motion with the court to change the venue.
The Advantage of Having Better Notice About the Proceedings
When you are the first to file for divorce, you know right away that the case exists and where it will take place. And if your spouse fails to respond in time after you properly notify them of the case, you might receive a default divorce judgment entirely in your favor.
In general, whoever files for divorce must give notice to the other spouse by serving them with the complaint and a summons. The service the law requires is personal service, which usually means having a licensed process server personally deliver your divorce paperwork to your spouse. The summons tells your spouse about the proceedings and informs them they have 21 days to respond to your complaint.
If you have done a proper search and cannot locate your spouse for service, the court might allow you to serve them by mail, email, or text. A spouse could easily miss this type of alternative service and become subject to a default divorce judgment. Conversely, if your spouse is the first to file and you miss the deadline to answer, you can ask the court to set aside a default judgment. However, this is extra work that is best handled by a knowledgeable divorce attorney.
Make Your First and Best Move with Mills & Anderson
We constantly hear that the early bird gets the worm, and that adage applies even in divorce court. By filing first, you might gain control over your case’s procedural aspects, which can make the process easier and provide you with a more favorable outcome. However, the most favorable outcome can come when you have a good attorney by your side. Our Nevada attorneys at Mills & Anderson receive top ratings and have more than 60 years of combined experience. We also provide straightforward advice to our clients so that they don’t waste a minute of time on the wrong strategies. Contact us by phone or online to schedule a consultation.
Resource List
- NRS 125B.030, link
- Nevada Child Support Guidelines, link
- NRS 125.020, link
- State of Nevada Joint Information Center, History of Nevada, link
- Nevada Rules of Civil Procedure, Rule 11, link
- NRS 13.050, link
- NRS 14.025, link
- Nevada Rules of Civil Procedure, Rule 4, link
- Nevada Rules of Civil Procedure, Rule 4.4, link
- Nevada Rules of Civil Procedure, Rule 55, link
