It’s odd to talk about having an advantage when it comes to a life moment as delicate and complicated as divorce. However, getting the upper hand over your soon-to-be ex-spouse can save you a lot of emotional and financial stress down the road.
You may think that it’s really not that important who files for divorce first in Illinois as the outcome is the same regardless: you get separated from your spouse. But as you’ll find out in this article, you stand to lose out on a few crucial perks if you do not file first.
The General Principle: Your Rights Are the Same No Matter Who Files First
Filing for divorce would only affect the proceedings if the courts took fault into account when ruling over alimony and property division matters. In some states, the courts will consider fault in these decisions. If one spouse was adulterous, received a felony conviction, or otherwise caused the divorce to come about, the courts in fault states might rule more harshly for him or her. Illinois, however, has a different set of laws.
Illinois is a no-fault divorce state, which means it doesn’t really matter who files for divorce first. Since no one has to prove any “reason” for the divorce aside from “irreconcilable differences,” being the first to file has no legal advantage whatsoever. In other words, your property rights and parental rights are the same regardless of whether you filed for divorce or your spouse filed for divorce.
The Reality: Filing for Divorce First Can Offer Certain Advantages in Certain Circumstances
While your rights are the same regardless of who files, the reality is that there can be some benefits associated with filing first in Illinois. These advantages may or may not be an issue in your specific case. Here are several potential advantages of filing for divorce first:
- You Choose the Jurisdiction
You may have a choice of where to file for divorce if:
- You and your spouse in different counties or states
- You have established residency in two (or more) states
Where there is a choice in the jurisdiction, different divorce laws may apply to your case, depending on where you file. In these cases, being the first to file lets you pick the jurisdiction with the rules that have the biggest potential to be most advantageous to you and your case. This type of upfront strategizing in an Illinois divorce can go a long way towards protecting your interests while positioning your case for a more favorable outcome.
- Getting In the Word First
By filing a complaint for divorce, and thus being the petitioner, you get to set the stage for the proceedings.
The family court will read your complaint for divorce first, meaning you can highlight your side of the case before your spouse gets to make their defensive arguments. At court hearings and at trial, you will likewise get to present your case first, letting your frame the evidence, issues, and arguments in a manner most favorable to you. As a side note, only a percentage of divorce cases go to trial. However, being the petitioner at trial if it does occur is a distinct advantage.
- You Have More Time to Prepare
If you decide to pursue a divorce before your partner does, you get a head-start on preparing the legal structure to support you. By the time you file your divorce papers, you will likely already have an adviser or a divorce attorney. You will have had time to gather relevant documents and witnesses.
By contrast, your spouse will have a limited period of time before the divorce proceeding gets underway. In Illinois, a spouse has only 30 days to respond after being served divorce papers. Even if your partner has anticipated the impending separation, your filing sets off official deadlines that the other party will have to keep up with.
- More Confidence and Control
Filing first comes with emotional and psychological benefits, too. If you’re in a toxic and abusive relationship, taking the first step can feel empowering. You have the time to come to terms with the fact that your marriage ended and take action. Instead of reacting to your spouse filing, you are in control over the situation and the ways you want to change your life. You need that kind of mindset during a challenging and stressful period like a divorce.
- Safeguarding Your Finances
When one or both spouses have significant assets, real estate, investments, or business ventures, the spouse who files for divorce can include a temporary restraining order, which prevents both you and your spouse from making significant changes to finances or estate during the divorce proceedings.
This is particularly beneficial if you believe your spouse is hiding assets. The restraining order prohibits your spouse from buying, selling, borrowing against assets, or otherwise muddying their financials.
- You Get to Protect Your Children
Not all divorces are amicable, and not all couples have the same ideas about what is best for their children.
If you file first for a divorce in Illinois, you can also file a motion that preserves the status quo of your children, including where they live, what their daily schedule and routine is like, and how parenting time works out until the court rules on the matter further. This prevents any major disruptions to the lives of your children that isn’t in the best interest in such a tumultuous time.
- For Some Issues, Timing is Absolutely Critical
If you file first, you will establish a clear mark in time that the court may use as the point of irretrievable breakdown. While it’s possible that the court may use other dates—like the date of a huge fight or a suspicious bank transfer—the date of filing will ultimately be used to establish the point of irretrievable breakdown if all other dates are unavailable.
This may give you a strategic advantage in several scenarios:
- Property valuations: Illinois divorce law grants courts the discretion to use the date of filing as the date by which to value property. In other words, filing earlier or later can have an impact on the valuation of the property being divided.
- Maintenance awards: There is a designated formula for determining maintenance awards in Illinois. A key tenet of this formula is the length of the marriage, which takes into account the day the divorce complaint was filed. If you file sooner, then there’s a high likelihood that your maintenance payments may run for a shorter duration.
- Shared debt: In Illinois, any debt accrued at some point throughout the marriage is considered shared debt and will be split between the spouses upon divorce. The earlier you file for divorce, the sooner you are exempted from the burden of shared debt.
Contact Us for Legal Assistance With an Illinois Divorce
Given how critical the initial filing can be to setting the tone of a divorce case—and to influencing its outcomes—it’s essential you get trusted advice at your earliest opportunity. Our Illinois family law attorneys can explain everything you need to know, help you get your case started, and help you navigate the path towards an optimal resolution.
With our award-winning counsel, 5-star service, and skilled representation, you can be confident that your rights and interests will be adequately protected from start to finish. Call us on (215) 515-0827 or fill out our online contact form for a 100% confidential consultation.