- May 9, 2025
- CLLB Law
- Divorce
While Indiana is a “no-fault” state, so you do not have to make any allegations against your spouse to file for divorce, it still may matter whether you file for divorce first.
Even when both spouses want to divorce, it can be a scary time as you are embarking on a new chapter of life. You have several unknowns ahead of you, such as how long the divorce process takes, whether your spouse will argue over division of property, visitation, and support, and other factors you now have to deal with.
When you sign the final divorce decree, it is legally binding, so there are many decisions to make, and it is a good idea to get a head start on thinking about issues such as property division, spousal support and child support, and visitation. Whether or not you file for divorce first, an experienced divorce lawyer can help you work through these issues and determine the best way to handle them.
In general, if you act to file before your spouse does, you’ll be in a better position because your attorney will inform you of all your options and explain each step in the process. You can make more informed decisions when you have legal counsel right from the start, and filing for divorce first gives you a jump on securing the best representation possible.
At Church Langdon Lopp Banet (CLLB Law), our divorce lawyers can help you through the entire divorce process, whether you and your spouse agree on everything and want to file an uncontested divorce or you need to go to court to determine the division of assets, visitation and support.
Why it Matters Whether You File for Divorce First
Indiana divorce law is the same regardless of who files for divorce first, and it is especially important to move quickly if your divorce is contested. Under Indiana law (Indiana Code § 31-15-2-3), there are only a few specific causes for fault-based divorce. These are:
(1) Irretrievable breakdown of the marriage
(2) The conviction of either of the parties, after marriage, of a felony
(3) Impotence, existing at the time of the marriage
(4) Incurable insanity of either party for at least two years.
However, even if the divorce starts out amicable and is uncontested, issues and conflicts often arise, especially in situations where there are children or significant assets involved. The following are some reasons why it can be better if you are the one who files for divorce first:
You Can Get the Best Attorney
It is considered to be unethical for divorce lawyers to consult with a potential client if the divorcing spouse has already interviewed them, even if they do not end up representing the spouse. If you are looking at certain attorneys you think you would like to represent you, you do not want to have them disqualified because your spouse has spoken to them first. By acting quickly, you have a complete choice of attorneys.
You Will be Better Prepared
When you start working with a divorce attorney before you file, you can plan ahead and prepare for issues that may be potential problems. For example, if you believe your spouse was committing adultery or hiding assets, your attorney may want to hire an investigator or forensic accountant to find evidence before it can be destroyed. You still also need evidence of fault if you decide to file an at-fault divorce for a specific reason that may give you an edge when it comes to deciding issues like child custody.
Filing First Can Help if the Divorce is Contested
A divorce is contested when one person does not want to divorce or both want to divorce but cannot agree on the division of assets, time-sharing with the children, and whether one spouse should pay spousal support. If you file a contested divorce, you may find you have more control and are in a better legal position as the first to act, and you will have more time to prepare with your attorney.
You Can File Temporary Orders
As the spouse who files first (called the petitioner), you will have the first opportunity to request temporary orders, which will place obligations on separating spouses for a specified amount of time, usually up until the divorce is finalized.
Examples of temporary orders include:
- Restraining orders that keep your spouse away from you and your children, if spousal abuse is an issue.
- Monetary holds where the court can put a hold on spending joint money or selling joint assets for cases where one spouse might try to sell or give away assets to spite the other spouse.
- Temporary spousal support for cases where one spouse might not have worked for many years because of being at home taking care of the children and thus needs financial help from the other spouse. The court looks at several factors when determining spousal support, including the length of the marriage, the income of the spouses, and the behavior of the spouses in the months before the divorce and during the divorce process.
- Temporary orders for arrangements as to who will live in the family home or who will be the custodial parent.
- Temporary orders for child support. Indiana statutes provide a formula that bases child support for each spouse on their income. Child support is used for providing housing, clothing, medical care, health insurance and daycare, and more for the child.
Your attorney can help you decide if temporary orders are desirable and help you file for them if necessary.
You Can Choose Where to File
As the petitioner, you can decide in which county the divorce is filed, as long as either you or your ex-spouse have lived in that county for the last 90 days. If you and your ex-spouse have been living in separate counties, you won’t have to travel as far to attend court proceedings if you file in the county where you live, as that is where court hearings will be held. You can choose an attorney in the county where you live as well. However, there may be some reasons why it can be better to file in your spouse’s county, so let your divorce lawyer determine which is best for you.
You Can Choose a Separation Date
If you and your spouse still live together and you file for divorce, it is likely that the date your petition is filed will be considered the date of separation, which could affect division of your property. In Indiana, all assets and property owned by either spouse, whether individually or together, are initially considered to be marital property and will be divided in the divorce. According to Indiana law (Ind. Code § 31-15-7-4), marital property includes property . . .
(1) owned by either spouse before the marriage
(2) acquired by either spouse during the marriage and before final separation
(3) acquired by the spouses’ joint efforts.
This means that in Indiana, the only property not subject to distribution in divorce is property either spouse individually acquired on their own after they filed for divorce or legal separation. Therefore, after the legal separation date, you would be entitled to any assets you acquire, but you would need to divide assets considered marital.
Disadvantages of Filing First for Divorce
There are a few disadvantages for filing first for divorce that you should consider when you consult with your attorney. These include:
You May Further Damage Your Relationship
Once you serve your spouse with divorce papers, called the Complaint for Divorce, it could create lots of anger, hostility, and conflicts. You will have to state your demands in the complaint, and you will probably have to start with more than you wish to accept to allow for negotiations, so your spouse will be able to utilize this information to develop strategies to fight against you. Since it is in everyone’s best interests to make the process go smoothly and peaceful, especially if there are children involved or you still are living together, you may want to speak with your spouse before filing or attend mediation to try to come up with some agreements and amicable solutions.
You Will have to Pay Some Upfront Fees
The petitioner is the one who has to pay the filing fee for the initial Complaint for Divorce, as well as any fees to serve their spouse, called the respondent. If you can’t afford the fees, there are times that fees can be waived, and it may be possible to negotiate splitting the fee with your spouse or having fees repaid as part of an agreement.
What to Consider as You Decide if It’s Better to File for Divorce First
Divorce is a complex process, even when it is uncontested and there are no children involved. At the very least, there will be assets and debts to divide and perhaps you’ll need to come to an agreement related to spousal support. As you debate whether you should file for divorce first, consider that you may have a stronger position if you do. You can be more informed about the process and about your options in how agreements are structured if you obtain an attorney who can help you file for divorce first.
While your divorce may be amicable, you can be better prepared if you get help from an attorney right from the start. So, if you choose to file first, or at the very least, to speak with an attorney first, you can better protect your interests.
If You Wonder Whether It Matters Who Files for Divorce First, Ask Us
Whether or not you decide to file first for divorce, the skilled and compassionate Indiana Family Law Attorneys at Church, Langdon, Lopp, Banet Law know that taking the appropriate steps from the start will lead to the best outcome for you and your children. Let us help you meet the challenges of divorce, make sure everything is done properly, protect your assets, and help you through this difficult period.
Do not delay. For skilled and knowledgeable representation regarding any divorce issues, call us today for a consultation at (812) 725-8226. We can discuss all the elements of your divorce and why it may be best for you to file for divorce first.
GET HELP NOW 812-725-8226
Based in New Albany, Indiana, we proudly serve communities throughout Kentuckiana; Floyd County, IN; and Clark County, IN.
Attorney Dana Eberle
Dana is a native of Southern Indiana and is deeply devoted to Kentuckiana. After spending most of her life in Floyds Knobs, she has also lived in Greenville, New Albany, and Georgetown. Allowing Dana to become familiar with every town of Floyd County. She oversees the Family Law practice area for CLLB, and she firmly believes that helping families is her destiny. [ Attorney Bio ]