Sometimes there is a situation where one side has filed a case in court first, and where the other side filed somewhat later, in another county, but achieved service on the first person first.
Take the example where Husband filed May 1, in County A, but did not achieve service upon Wife until after Wife, who filed May 3 in County B, succeeded in serving her Petition and Summons on Husband.
There is a question in some people’s minds about which case should go forward, and which case needs to be dismissed.
There is, of course, a monetary cost to being the losing party in this race, since that means that the loser will have to dismiss their case, and since the loser will also have to prepare different documents as the “Respondent,” and then file them in the other case. There may also be practical considerations relating to the difficulty and expense of having your chosen lawyer attending court a long way away from his or her office, and relating to the case being held in a court where your lawyer is less familiar with procedures that may differ from place to place.
The answer to who has won the race to the courthouse is very clear. The person who filed first wins. Even though the other person may have achieved service first, the person who filed first wins, their pleadings stand, and the case proceeds in the county they chose.
Steven A. Heinrich
Divorce & Custody
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