Filing first in a NJ divorce —people ask this question in a whisper, like there’s a hidden “advantage” button you press to win your case. And I understand why. Divorce already feels like you’re stepping onto moving ground. When someone tells you “whoever files first has the upper hand,” it’s tempting to treat filing like a race.
Filing for divorce first can matter, but usually not in the dramatic way people think. It’s rarely a “winning” move by itself. What it can do is give you more control over timing, preparation, and early strategy—especially when children, finances, or safety issues are involved.
This post breaks down why it can matter, the real advantages and disadvantages, what to consider before you file, and how filing first may (or may not) affect child custody and property division in New Jersey.
(This is general information, not legal advice for your specific situation.)
Why does it matter who files for divorce first?
In New Jersey, filing first can matter because it sets the case in motion—legally and practically. The person who files becomes the “plaintiff,” and the other spouse is the “defendant.” That doesn’t mean the plaintiff is “right” or automatically favored. It simply means the plaintiff is the person asking the court to open the file, assign a docket number, and start the formal process.
The biggest reason filing first matters is momentum. Once the complaint is filed, deadlines begin, temporary issues can be addressed, and negotiations often become more focused because there’s an active court case behind them. For some families, that structure is a relief. For others, it can feel like an escalation.
It also matters because New Jersey has specific filing expectations, like where you file and what you pay. The NJ Courts divorce page explains you file in the county where you or the other person lives and lists filing fees (including an additional parenting workshop fee when custody/parenting time issues are requested).
So yes—filing first can matter. But it matters most when you’re using it for stability and planning, not for “points.”
Possible advantages of filing for divorce first
Filing first can give you a practical head start, especially if you use it to prepare carefully rather than file impulsively.
One advantage is control over timing. If you’re the one who files, you decide when you’re ready—after you’ve gathered documents, talked to a lawyer, arranged housing plans, or thought through a parenting schedule. If you wait and your spouse files first, you may suddenly be reacting under pressure.
Another advantage is being first to frame the early issues. In the first stage of divorce, families often need temporary arrangements for parenting time, bills, and household logistics. Filing first doesn’t guarantee you get what you ask for, but it can let you propose a clear, organized plan at the beginning—before chaos sets in.
A third advantage is choosing a calmer “story” to present. For example, most New Jersey divorces are filed on “no-fault” grounds like irreconcilable differences, and the NJ Courts divorce page describes irreconcilable differences as needing to exist for six months. If your goal is to keep things civil, filing on a no-fault basis can reduce the emotional temperature from day one.
Disadvantages of filing for divorce first
Filing first can also backfire if you treat it like a weapon.
A major disadvantage is that it can inflame conflict—especially if your spouse felt blindsided or if the marriage was still in a fragile “maybe we can work it out” stage. Once papers are served, some spouses shift into defensive mode and start preparing for battle, even if the issues were solvable through negotiation.
Another disadvantage is cost and complexity starting sooner. Filing first means you start paying the filing fees, and the court process begins on the court’s schedule. The NJ Courts divorce page lists the filing fee and the additional parenting workshop fee when parenting time/custody is at issue. If your family is already financially strained, triggering a court timeline too early can add stress.
There’s also an emotional disadvantage: filing first can feel empowering at first, but it can also feel heavy later. Some people file in a moment of anger or fear, then regret how fast it escalated. That doesn’t mean you can’t correct course—but it’s far easier to file strategically than to “un-ring the bell.”
Things to consider before you file for divorce
Before you decide whether to file first, ask yourself a few grounded questions.
First, are you filing because you’re ready—or because you’re scared your spouse will “beat you to it”? Fear-based filing tends to create messy cases. Prepared filing tends to create manageable cases.
Second, what are your immediate priorities: a stable parenting schedule, keeping a roof over everyone’s head, protecting savings, or setting boundaries? Your priorities should shape your first legal steps, not the other person’s personality.
Third, do you have the information you need? Even in amicable divorces, people regret filing without understanding finances. If you own a home, have retirement accounts, or share debt, you want a realistic picture before negotiations begin.
Finally, think about children. If kids are involved, your first goal should be stability, not leverage. Courts focus custody decisions on the child’s best interests and specific statutory factors, not on who filed first. (More on that below.)
What legal steps are involved in filing a divorce in NJ?
Filing for divorce in New Jersey is a process, not just a single form. The basics are straightforward, but the details matter.
You start by filing a Complaint for Divorce in the Superior Court, Family Division, in the county where you or your spouse lives. The NJ Courts divorce page states this clearly and lists the associated fees. Many filings can also be submitted electronically through JEDS (Judiciary Electronic Document Submission), which the NJ Courts describe as a way to submit documents and pay fees electronically.
After filing, your spouse must be served and then has a deadline to respond. NJ Courts explain that a defendant generally has 35 days to respond and that they can file an Answer, Answer and Counterclaim, or an Appearance.
That response piece is important. If your spouse disagrees with any part of your complaint (or wants to assert their own claims), they are not “stuck” because you filed first. They can contest issues and file a counterclaim.
How can a law firm help?
A lot of people can technically file without a lawyer. The bigger question is whether you want to.
A family law firm helps by turning panic into planning. We help you file with a strategy—so your first steps support your goals. That might mean advising you not to rush, or it might mean filing quickly with a request for temporary structure if the situation is unstable.
We also help you avoid early mistakes that cause long-term harm: filing with weak documentation, inflaming conflict unnecessarily, making admissions that hurt custody negotiations, or agreeing to temporary arrangements that become “the new normal” and are difficult to change later.
Finally, we help you communicate through the case in a way that protects you. Divorce is as much about credibility as it is about law. The more organized and reasonable you appear, the more leverage you typically have—both in settlement and in court.
Why work with Sammarro & Zalarick?
You don’t hire a Bergen County divorce lawyer because you want drama. You hire one because you want clarity.
At Sammarro & Zalarick, we focus on helping clients make smart decisions early—when decisions matter most. That includes realistic planning around custody schedules, temporary financial arrangements, and a settlement strategy that avoids unnecessary litigation when possible.
We’re also practical. Sometimes filing first is the right move because you need structure, protection, or momentum. Other times, filing first is a mistake because it escalates a situation that could have been resolved with quieter negotiation. Our job is to help you know the difference based on your facts.
How does filing divorce first affect child custody decisions?
This is where people expect the biggest advantage—and where the truth is most important:
Filing first does not give you automatic custody advantages in New Jersey.
Custody decisions are based on the child’s best interests and a set of factors courts must consider. A New Jersey court opinion (2025) lists those factors directly, including the parents’ ability to communicate and cooperate, safety considerations, stability, the child’s needs, and other best-interest factors.
So what does filing first affect? It can affect the temporary reality—the schedule that gets used while the case is pending. If one parent files first and proposes a workable parenting schedule immediately, it can create early stability. If the other parent delays or reacts emotionally, the court may keep the more stable temporary plan in place until a better one is negotiated.
In other words, filing first isn’t a custody “hack.” It’s a chance to be organized early—if you use it that way.
Can both spouses file for divorce simultaneously?
Technically, yes—two people can file two separate complaints. Practically, it usually doesn’t stay that way.
Once one spouse files, the other spouse typically responds by filing an Answer and Counterclaim rather than starting an entirely separate case. NJ Courts explicitly describe the “Answer and Counterclaim” response option.
If two separate cases are filed, courts generally don’t run two divorces at once for the same marriage. One case usually becomes the primary case, and the other may be consolidated or dismissed depending on timing and procedure. (The practical takeaway: racing to file a second complaint usually doesn’t create a second “track” that benefits you.)
Can I change my mind after filing for divorce?
Yes—people do change their minds. Sometimes couples reconcile. Sometimes they realize they filed too quickly. Sometimes they simply want to pause and negotiate.
But the ability to “undo” a divorce filing depends on timing. If your spouse has not responded yet, dismissal may be simpler. If your spouse has already filed an answer or counterclaim, dismissal can be more complicated because the other spouse may have their own claims pending.
A New Jersey Supreme Court case discussing voluntary dismissal explains that once an answer is filed, unilateral dismissal by notice is no longer available under Rule 4:37-1(a) in that scenario.
In plain terms: you can often stop the process, but you should do it correctly. Don’t assume you can just “withdraw it” casually once the case is active.
How does filing first impact property division?
This is another big myth area.
Filing first does not give you a better legal share of the marital assets.
New Jersey divides marital property through equitable distribution, considering a list of factors. The New Jersey Legislature’s text discussing 2A:34-23.1 lays out equitable distribution criteria and makes clear the court considers multiple factors (duration of marriage, age/health, income, standard of living, etc.) when distributing property.
What filing first can affect is the information and documentation available early. If you file first and you’re organized—bank statements, retirement accounts, mortgage details, debt summaries—you can negotiate from a stronger position because you’re working with facts rather than guesses.
But the legal framework for property division does not reward the “fastest filer.” It rewards evidence, fairness, and a clear accounting.
A simple way to decide: when filing first is smart, and when it’s not
Filing first is usually smart when you need structure quickly: uncertainty about parenting time, a spouse who is draining accounts, refusal to cooperate, or a situation where you need temporary court orders to stabilize daily life.
Filing first is often not smart when the only reason is “I want to win,” or when you and your spouse are still actively negotiating and filing will unnecessarily escalate conflict.
The best advice we can give is this: don’t treat filing as a race—treat it as a strategy decision.
Talk to a Bergen County divorce lawyer before you decide
If you’re debating whether to file first, the best move is often a short, confidential consult to map out your risks and timing—especially if children, a shared home, or complicated finances are involved. Sammarro & Zalarick serves clients across Bergen County and Northern New Jersey, and we can help you decide whether filing first supports your goals—or whether a quieter, negotiated approach is smarter.
Note: This article is general information, not legal advice. Laws and procedures change, and every case is different. For advice about your situation, speak with an attorney licensed in New Jersey.