“Race to the courthouse” is an informal name used to describe the rule in some jurisdictions that the first conveyance instrument, mortgage, lien or judgment to be filed with the appropriate recorder’s office, will have priority and prevail over documents filed subsequently, irrespective of the date of execution of the documents at issue. In popular culture, being the party to file a lawsuit first is always portrayed as preferable. But like most things on TV, they just don’t hold up in real life; except maybe in Hollywood. (Hollywood is hard to call “real life” in any case.)
Take for example the recent divorce filing of “Iron Chef” star Cat Cora and her wife Jennifer. Last October, Jennifer filed for divorce first. According to documents filed in the divorce between Cat and Jennifer Cora, Cat’s lawyer fired off an angry letter to Jennifer’s lawyer, claiming they had a deal — Cat would file the divorce petition for “public relations” reasons. (Read: So that it appeared Cat was leaving Jennifer, not the other way around.)
But why should it matter? It doesn’t. (Except if you are a celebrity living in LA) It makes no difference who files for divorce. The law does not favor the first to file in any way. A party’s rights are not affected by filing first, nor are their interest in property or support impacted in anyway.
There are some inconsequential differences though. First, the party who files for divorce is referred to as the “Petitioner” and the party who responds to the divorce is called the “Respondent.” Further, when submitting exhibits to the court, the Petitioner marks their exhibits using numbers (1,2,3,4…) and the Respondent marks their exhibits using letters (A,B,C,D…). Other than these differences, nothing except the order of the names in the case file matters.
However, there is one small difference that could be important to your case that is dictated by who filed the case: the order of presenting evidence. In pre-trial hearings, whoever filed the motion is the first party to address the court. For example, if you filed a motion for spousal support, you or your attorney are the first to present your case.
In a trial, the Petitioner (the party who filed first) is the party who gets to present their evidence, witnesses and testimony first. Rarely is this advantageous, but I can imagine a few instances where this might be helpful. For example, if you have a complex financial issue, it can be advantageous to present your evidence first thing in the morning while the Judge is fresh as opposed to after lunch when the Judge may have lost interest. If you have a very fact driven case (like child custody cases) then being able to present your facts first could be an advantage since the first version of events is your version.
These potential “advantages” are nominal in terms of the success of your case. Solid preparation, expertise and experience are far more important than whether you present your case first or second. A qualified and experienced family law attorney will be able to discuss these issues with you further and answer any questions you may have.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.