HomeFeaturesLaw › Dear Divorce Mediators: Does It Matter Who Files First?

By Michael Aurit, JD, MDR and Karen Aurit, MA, 
Co-Founders of The Aurit Center For Divorce Mediation 
Located in Scottsdale, Arizona

healthy co parenting

DEAR DIVORCE MEDIATORS: I think I need to file for divorce because my Husband will never file first. I don’t want to cause a huge blow, and feel bad about filing, but I don’t see any other way. I just know I can’t stay married any longer.

Do I need to “serve” him with divorce papers? Is there any way he won’t see this as an attack? – FILE-SHY IN PHOENIX

DEAR FILE-SHY: Filing for divorce can be emotional, even when both spouses understand that it is time for the marriage to end. Arizona is a “no-fault divorce” state. This means that when one spouse decides to move forward with divorce, the process begins and will end in divorce. However, spouses have a choice about whether to go through divorce litigation or divorce mediation—and filing in each process is a very different experience. 

FYI, divorce mediation is a process in which an impartial mediator helps spouses reach agreements and finalize all the issues of their divorce, so that spouses never enter a courtroom.

Filing by surprise vs. Filing together

In divorce litigation, one spouse usually files a Petition For Divorce unilaterally. Often times, the other spouse is caught by surprise. This can be perceived as an attack and cause unnecessary conflict.

Instead, spouses in divorce mediation can decide to begin the divorce process by filing the initial divorce paperwork together with their neutral mediator. This allows full transparency and greatly lowers conflict.

In any divorce Petition, one spouse will be listed as the “Petitioner” (the person who files) and the other spouse will be the “Respondent.” In Arizona, there are no legal consequences or advantages for whom is listed as the “Petitioner” and who is listed as “Respondent.”

Specific, extreme demands vs. Specific terms to be decided in mediation

In the litigation-court process, the Petition is likely to list numerous specific divorce demands regarding address property, debts, and financial support. Too often, these initial demands can be considered “extreme” and this only fuels conflict. When children are involved, the Petition includes specific requests regarding decision making, parenting time, and child support. Most often, the other parent is not consulted.

In mediation, rather than specific demands, your Petition will simply request that the parties should decide all assets and debt division and support issues fairly by mutual agreement, and parenting issues should be decided mutually and in the best interests of the children. The Petition will state that spouses will agree on specific terms in private mediation. The mediation approach greatly reduces the conflict by beginning the divorce process together—without unilateral demands.