Racing to the Courthouse: What does winning get you?
Did you know that a marriage divorce is technically a lawsuit? Child custody and child support disagreements are often resolved via a lawsuit (1). In a civil lawsuit, there are at least two sides often referred to as the Petitioner and the Respondent. The Petitioner is the side that files the lawsuit with the court. Many times, both sides in a dispute can see that the way forward is through legal proceedings. This sets up a dynamic on who will file the lawsuit.
Are there advantages to being the Petitioner? Yes, there are absolutely advantages to winning the race to the courthouse.
- Timing: By filing first, the Petitioner gets to control the timing of when the Respondent gets served. This can be important if the Petitioner wants to get a head start on the litigation process. The timing of the filing also sets up a number of deadlines that revolve around the filing date. Some of these deadlines are filing the Answer to the suit; when discovery requests are due; and expected trial dates.
- Scope: The Petitioner’s filing will define the initial scope of the case. It is the burden of the Respondent to attempt to narrow or broaden the case. This gives the Petitioner a strategic advantage in negotiations.
- Jurisdiction: One of the most important reasons for filing first is determining the proper jurisdiction. Every court has geographic and matter-specific jurisdictions. Filing in the right jurisdiction is vitally important. A case filed in the wrong jurisdiction can be dismissed without ever being reviewed. In Texas, at least one party to the case must be a resident of Texas. The determination is that the person has lived in Texas for at least 6 months.
For example, a couple have split up and one party moves out of state. Until that person meets the residency requirements in the new state, the party that has stayed is the only one that can file the divorce petition. When that person does, the jurisdiction will be in their state. The Respondent now has the burden of finding counsel within that state and must travel to the state in order to make court appearances. In addition, state laws vary greatly and some states are much more favorable venues for various Family Law actions.
An example of different laws: Some states require a paternity test must be taken before child custody case can begin. Such tests have to be scheduled and may take some time to get results back and filed with the Court. Other states have the paternity test later in the proceedings or might be waived completely. This allows the case to go forward quicker.
Even county residency requirements can matter. In Harris County, many Family Courts allow participants to attend via teleconference. In other counties, only physical attendance matters.
Before filing a Family Law proceeding, check with a qualified attorney and discuss the need for filing before the other party and make sure you are in the proper jurisdiction.
(1) “Lawsuit.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/lawsuit. Accessed 22 May. 2023.
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