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Who should file divorce first in India?

Deciding who should file for divorce first in India is an important strategic decision. Typically, the spouse who files first has a small advantage in controlling the timing and flow of the divorce proceedings. However, filing first does not guarantee a significantly better outcome. Here are some key considerations when deciding whether you or your spouse should initiate divorce proceedings in India.

Potential benefits of filing first

  1. Control the timing. The spouse who files first can decide when to start the legal process, catching the other spouse off-guard. This prevents the other spouse from filing first and setting the timeline.
  2. Choose the jurisdiction. If you and your spouse live in different states, filing first allows you to select which state the divorce will be filed in. Some states have divorce laws more favorable to your situation.
  3. Make preparations. Being the first to file provides time to gather financial records, open separate accounts, find a place to live, and take other steps to prepare for single life.
  4. Hide assets. Sadly, some spouses try to hide assets from the other. Filing first may prevent the other spouse from transferring property or money in order to hide it.
  5. Gain a small legal edge. The spouse who files first is the “plaintiff” and can present their side first. They also get to respond last to the other spouse’s arguments.

Potential disadvantages of filing first

  1. Reveal your position. As the filer, you must state your demands upfront in the divorce petition. This shows your hand and desired outcome before negotiations begin.
  2. Incur more costs. The filer pays the costs to officially serve divorce papers to their spouse. The other spouse can simply mail their response.
  3. Appear aggressive. Being the first to file may appear aggressive or hostile, especially if done as a surprise. This can provoke the other spouse and lead to a contentious divorce.
  4. Lose the moral high ground. Societal norms often favor the spouse who appears more reasonable and willing to compromise. Being the first to file may cede this perception.
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Other key factors in deciding

  • Custody is determined based on the child’s best interests, not filing order. However, filing first provides more time to create a stable living situation for child custody disputes.
  • No major statistical advantage exists either way. Negotiation and compromise ultimately determine the outcome more than filing order.
  • Consult an attorney to understand how local laws and judges may view filing first in your jurisdiction. Perceptions differ by state and city.
  • Weigh the above pros and cons against your specific situation. For example, filing first to select jurisdiction may be critical if you moved recently.
  • Focus on resolving issues amicably through mediation. Avoid viewing divorce as a “battle” needing strategy.

In summary, filing first in India provides some possible advantages but is rarely decisive on its own. Seek legal counsel to determine if it aligns with your goals and local norms. But approach divorce first and foremost by prioritizing fairness, compromise, and compassion.


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