Either way, there are some tactical advantages to being the first to file (being the “plaintiff”). These include:
- The first to file has time to shop around for an attorney
- The first to file chooses the time frame and venue
- The first to file can start protecting community property
- The first to file can withdraw the divorce (if the other party has not responded yet)
- If there is a Nevada divorce trial, the first to file would go first and be heard last
1. The plaintiff has time to shop around for an attorney
Choosing the right divorce attorney is of utmost importance. A divorcing spouse trusts his/her attorney with advocating for his/her most sensitive interests, including money and child custody in Nevada.
Ideally, a divorcing spouse will feel a strong connection with the first attorney he/she seeks out. But sometimes, a divorcing spouse needs to interview several attorneys to find the right one.
As long as no one has filed for divorce yet, a spouse can take his/her time to search for the best person to represent him/her in what may be the most emotionally draining experience of his/her life. If the other spouse files first, then the responding spouse (“defendant”) would have to scramble to find an attorney within the 20-day time period the defendant has to respond.
2. The plaintiff chooses the time frame and venue
A dissolution of a marriage may feel like the ultimate loss of control. But the plaintiff in a divorce action has time to plan ahead.
As long as no one has filed for divorce yet, a spouse can choose the precise day to begin the process that will fit in best with his/her schedule. Maybe the day can correlate with the end of a school year, or the beginning of a vacation, or another time when filing would be more convenient for the spouse.
If the couple are living in different states, the first spouse to file also chooses which court to file in. That does not mean that the venue may not be changed down the line if the other spouse has a valid legal argument for the case to transfer venues. But as long as the first spouse to file is a resident of where he/she is filing, chances are the case will be handled there.
3. The plaintiff can start protecting community property
If no one has filed for divorce yet, nothing is stopping the spouses from trying to sell or hide assets (such as by gifting them to a relative or putting them in an offshore account). Once a spouse files for divorce, the judge will issue a joint preliminary injunction (JPI) that prevents the couple from doing anything unusual with their property without the judge signing off on it.
By being the first to file, the plaintiff knows when the JPI will go into effect and can make his/her own financial preparations in advance.
4. The plaintiff can withdraw the divorce (if the other party has not responded yet)
The spouse who files first for divorce can always withdraw the petition as long as the other spouse has not filed an answer yet. Sometimes, the mere act of filing will cause the other spouse to explode into conciliatory action: Agreeing to counseling, compromising on key issues, etc. And then the filing spouse can unilaterally cancel the divorce.
If the other spouse files first, then the responding spouse has no power to unilaterally withdraw the divorce. Once a spouse answers the divorce complaint, both spouses would need to agree to cancel the divorce bilaterally for the judge to dismiss the case.
5. At trial, the plaintiff would go first and be heard last
The vast majority of divorces resolve without a trial. But if they do, the spouse filing first usually has a tactical advantage because he/she gets to present evidence first and then “rebut” the defendant after the defendant rests his/her case.
So by being the first to file, the plaintiff is guaranteed to make the first impression on the judge and to be the last person the judge hears from. In a close case, being the first one and last one to be heard just may give the plaintiff that extra edge which will cause the judge to side with the plaintiff.
Also see our article on the disadvantages of filing for divorce first in Nevada.