The journey through divorce is often a challenging and emotionally charged one, and when it comes to navigating the legal aspects, even seemingly minor decisions can feel overwhelming. One common question that arises during divorce proceedings is whether it matters who files for divorce first? The state of Illinois, like many others, has its own set of laws and procedures governing divorce cases. In this article, we will explore the concept of filing for divorce first in Illinois, understand its potential implications, and shed light on whether this decision holds any significant sway in the outcome of the divorce settlement.
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The Legal Landscape in Illinois
Before delving into the significance of being the first to file for divorce in Illinois, it’s important to have a grasp of the legal landscape. Illinois is a no-fault divorce state, which means that neither spouse is required to prove fault or wrongdoing to obtain a divorce. This emphasis on no-fault divorces underscores the state’s commitment to making the process less adversarial and more focused on the dissolution of the marriage itself, rather than assigning blame.
If you live in an at-fault state, the Petitioner would be able to assert fault against the Respondent. The Petitioner would then have a burden to prove the Respondent is at fault. This can be difficult, and can also prolong litigation. In most at-fault states Petitioners can also cite “irreconcileable differences” just as they would if the Petitioner was in a no-fault state but it is up to the Petitioner to choose.
Perceived Advantages of Filing First
There is a common belief that the spouse who files for divorce first gains certain advantages in the legal proceedings. While it’s essential to recognize that the specific dynamics of each divorce case can vary widely, there are a few potential advantages that are often associated with being the first to file including:
- Choice of Venue
- Control Over Timing
- Framing the Narrative
- Preparation and Strategy
Choice of Venue: The spouse who initiates the divorce may have the ability to choose the county where the divorce proceedings take place. This choice could be advantageous if the selected county has a reputation for being more sympathetic to certain issues or has a history of favorable judgments. Research the laws in your area because there could be restrictions to picking a venue. Usually you have to reside within the county you file in for 90 days.
Control over Timing: Filing first allows a spouse to have more control over the timeline of the divorce proceedings. This can be particularly important if there are time-sensitive issues, such as temporary child custody arrangements or financial support orders.
Framing the Narrative: The spouse who files first often gets the opportunity to present their side of the story first. This can set the tone for how the court perceives the case and may influence subsequent decisions related to property division, alimony, and child custody. Make sure to tell a good story but focus on the facts of the case, not the emotion. The court makes decisions based on the facts of the case, not the emotions of the parties, and unnecessary inclusions in your story can distract from your case.
Preparation and Strategy: Initiating the divorce provides the filing spouse with the time to gather necessary documents, consult with legal counsel, and devise a strategic approach to the proceedings before they file with the court. This person is called the petitioner. If you, instead, are the one served with divorce papers, you will only have 30 days to file an answer. This person is called the respondent. If you do not file your answer promptly then it is possible the judge will find in favor of the petitioner and make a default judgement against you. To ensure you’re ready for court, check out our article titled “How to Present Evidence in Family Court in Illinois.”
The Reality of the Situation
While these perceived advantages might seem compelling, it’s crucial to remember that divorce cases are complex and multifaceted. The benefits of filing first are not guaranteed, and the ultimate outcome will depend on a multitude of factors, including the specifics of the case, the legal representation, the judge’s discretion, and the willingness of both parties to negotiate and collaborate. At the end of the day, the facts win your case. You cannot win simply because you had an advantage by filing first.
Equitable Distribution in Illinois
Illinois follows the principle of “equitable distribution” when it comes to dividing marital property during a divorce. Equitable distribution does not necessarily mean an equal 50-50 split of assets; instead, the court seeks to divide assets in a fair and just manner, taking into consideration factors such as the length of the marriage, each spouse’s financial contributions, and their future needs.
Other states have different rules so it is important to research the rules in your state. All states except for Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin are equitable distribution states. All states also recognize prenuptial and postnuptial agreements that may have a drastic impact on the distribution of assets in a divorce.
Child Custody and Support
When children are involved in a divorce, the court’s primary focus is on the best interests of the children. Factors such as each parent’s ability to provide a stable and nurturing environment, their involvement in the child’s life, and their willingness to facilitate a healthy co-parenting relationship all play a significant role in determining child custody and support arrangements.
Filing first will not have a noticeable difference in how the court determines issues of child custody and support. These issues are decided on the facts. Judges will sometimes appoint attorneys specifically to represent the children in a divorce, especially if it is a highly contested divorce. To learn more about child support, check out our article titled “How Does Child Support Work If the Mother Has No Job?” You can also check out the Illinois Child Support Estimator.
Conclusion: Does It Matter Who Files for Divorce First in Illinois?
In the realm of divorce proceedings, the decision of who files for divorce first can be a weighty one. While there are potential advantages associated with being the first to initiate the divorce, it’s important to approach this decision with a clear understanding of the broader legal context in your state. Illinois’ commitment to no-fault divorces underscores its emphasis on a less adversarial process, focusing on the dissolution of the marriage rather than allocating blame. Most states are no-fault states.
Ultimately, the advantages of filing first are not guarantees, and the outcome of the divorce will depend on a multitude of factors. Equitable distribution of property and fair child custody arrangements are at the forefront of the court’s considerations. Therefore, whether you’re considering filing for divorce or responding to a divorce petition, seeking professional legal counsel and engaging in open communication can significantly impact the outcome of the case.
In the end, while the decision of who files for divorce first might have some strategic implications, the true key to a successful divorce lies in cooperation, negotiation, and a commitment to moving forward in a way that is both respectful and fair to all parties involved.
MEET WITH AN ILLINOIS FAMILY LAW ATTORNEY TODAY
The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.
Disclaimer: This article (Does It Matter Who Files for Divorce First in Illinois?) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information to answer the question Does It Matter Who Files for Divorce First in Illinois?
Published by Dustin Koth on March 20, 2024
