The Race to the Courthouse: Does Filing First Matter in Divorce?

Once you have reached the decision to end your marriage, the real work must begin. You and your spouse will need to decide how to divide your property, how to make arrangement for your children, and how to adjust to your new post-divorce lives. Before you can get there, however, one of you will need to start the legal process of divorce by filing a petition for the dissolution of marriage at the county courthouse. Many clients approach us with questions about this, often wondering how important it is to be the one who file for divorce and whether it makes any difference at all.

Knowing the Law

The divorce process in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA), which is a comprehensive collection of statutes that address matters from choosing a venue to how parenting time matters will be decided by the court. A divorce, as a matter of law, is essentially a legal action used to dissolve a marital contract between two parties, and, as such, in every divorce, there is technically a plaintiff and a defendant. These terms, however, are far less important in a divorce than in other areas of the law, such as personal injury or criminal law, and, in fact, the IMDMA refers to the parties in a divorce as a plaintiff or defendant only one time.

The IMDMA does, however, make more references to a petitioner and a respondent. The petitioner is the spouse who initiates the proceedings by filing the divorce petition, making him or her formally the plaintiff. The non-filing spouse is the respondent and is given the opportunity to file an answer to the petition including motions of his or her own. For the remainder of the proceedings, each party maintains equal status as a party to the case, with the ability to file motions, request considerations, and present evidence. From a legal standpoint, therefore, there is little official advantage to filing for divorce before your spouse does.

Confidence and Strategy

The decision to file a petition for divorce first could have other effects, though. By taking control of the situation and initiating the proceedings, some individuals feel an increased level of confidence. Such feelings can lead to a more positive attitude for the remainder of the process. Similarly, many believe that filing for divorce first can put their spouse on the defensive, providing the filing party with more control over the direction of the divorce. While this is not strictly true in a legal sense, the psychological impact should not be ignored. If your spouse has put you in such a position, we can help you mitigate the effect and restore a measure of balance to your case.

To learn more about the divorce process in Illinois, contact an experienced DuPage County family law attorney today. Call Abear Law Offices to schedule your free, confidential consultation with a member of our team and get the answers you need to whatever questions you may have.