Does It Matter Who Files for Divorce First in New York?

Written by Yonatan Levoritz on October 8, 2025

When a marriage is coming to an end, the first move can feel like the most important one. Many clients ask us right away: Does it matter who files for divorce first? In New York, filing first does not automatically determine who will win custody, how property will be divided, or what support will be awarded. Those decisions rest on statutes and the facts presented in court. Yet taking the initiative can shape the course of the case in meaningful ways. The spouse who files first often gains a measure of control—over timing, venue, and immediate court protections—that may influence negotiations and safeguard assets. At The Levoritz Law Firm, we help clients see beyond the myths, understand the legal realities, and decide whether filing first serves their best interests.

Strategic Advantages of Filing First in New York

Taking the first step in a divorce petition can set the pace of the entire case. While both spouses have equal rights under the law, filing first often provides:

• Control over timing and preparation. Initiating the divorce allows us to prepare documentation, financial records, and legal arguments before the other party responds. That preparation can minimize surprises later.
• Choice of venue. In New York, divorce must be filed in the Supreme Court. The spouse who files first has the opportunity to choose the county, as long as residency rules are met. This can matter in cases involving multiple residences or assets spread across boroughs.
• First opportunity to request temporary orders. Filing allows us to promptly ask the court for interim relief—such as temporary spousal support, custody schedules, or exclusive occupancy of the marital home—while the case is pending.
• Psychological momentum. The petitioner often feels a sense of control by setting the legal process in motion, which can reduce uncertainty during a stressful time.

Importantly, filing first also triggers New York’s Automatic Orders, prohibiting both parties from transferring property, altering insurance, or removing children from the state while the divorce is pending. These restrictions safeguard marital assets and prevent unilateral actions once the case begins.

What Filing First Does Not Guarantee

Despite the advantages, it is critical to understand that filing first does not change. In New York, the law emphasizes fairness and the child’s best interests rather than who initiates the case. Filing first does not guarantee:

• A better property settlement. Courts apply the rules of equitable distribution regardless of who files first. Assets and debts are divided based on fairness, not the filing sequence.
• Automatic custody rights. Custody is decided using the “best interests of the child” standard. Judges weigh factors such as stability, caregiving history, and parental fitness—not which parent filed first.
• Shorter timelines. While filing first sets the process in motion, the length of the case depends on issues in dispute, court schedules, and whether parties can reach a settlement.

As outlined by the New York State Unified Court System, custody, property division, and support decisions are determined by statutes and case-specific facts, not by which spouse filed first.

Possible Drawbacks of Filing First

While filing first often carries advantages, it may also bring drawbacks that should be weighed carefully:

• Upfront filing costs. The spouse who initiates the case is responsible for paying court fees. Legal fees also accumulate once the petition is filed.
• Alerting the other spouse. Serving divorce papers may escalate conflict if the other spouse was unprepared. That can make settlement harder in the early stages.
• Commitment to litigation. Once filed, the petitioner cannot easily pause the process without consent. This may limit options if reconciliation or mediation becomes viable later.

These considerations highlight why strategic planning is so important. Filing first should be a calculated decision.

When Is It Better to File First in a New York Divorce?

Filing first can be particularly beneficial under certain circumstances:

• Urgent need for financial protection. If there are concerns that a spouse might hide assets, sell property, or empty accounts, filing first imposes Automatic Orders immediately to prevent dissipation.
• Safety concerns. Where domestic violence, threats, or intimidation exist, filing first allows us to request protective orders along with the divorce petition.
• Complex financial estates. High-net-worth families often benefit from filing first to control the flow of discovery and secure court oversight of property while evaluations occur.
• Pending relocation disputes. When one parent attempts to move out of state with a child, filing first allows us to seek temporary custody or restrictions before that occurs.

In these scenarios, being proactive can protect rights and stabilize the family before serious harm occurs.

How to Decide If You Should File First

The decision about filing first should always be made with thoughtful legal advice. At The Levoritz Law Firm, we examine:

1. Your goals. Do you need immediate financial orders, custody protections, or the ability to set the pace of the case?
2. The other spouse’s position. Is your spouse likely to cooperate, negotiate, or contest every detail?
3. Timing. Would filing sooner benefit external pressures, such as upcoming business transactions, property sales, or travel plans?
4. Your emotional readiness. Divorce is both a legal and emotional process. Filing first requires commitment to moving forward.

We take the time to evaluate every detail of our clients’ circumstances—financial, personal, and legal—to determine whether filing first will advance their long-term goals or whether holding off will provide a greater advantage. Our role is to ensure the timing of this critical decision works in your favor, not against you.

Speak With a New York Divorce Attorney Today

Many clients want to know: Does it matter who files for divorce first in New York? While the law treats both spouses equally, filing first can create strategic advantages depending on your situation. At The Levoritz Law Firm, we help you evaluate timing, protect your interests, and prepare for every stage of the process. If you’re weighing whether to file or have already been served, call (718) 942-4004 today to speak with a New York divorce attorney who can guide you forward.