Filing for Divorce: Should I File First?
As you probably realize, the process of divorce is saturated with difficult decisions and challenging considerations. You and your soon-to-be ex-spouse must not only deal with your current situation, but expectations for the future as well, especially if you have children. Amidst the numerous concerns facing most couples is deciding who should file the petition for divorce and when. Are there advantages to filing first? Does it really matter?
For the vast majority of divorce situations in Illinois, there is no specified legal advantage to filing for divorce before your spouse can. The titles throughout the proceedings may be different—the filing spouse is called the petitioner or plaintiff, while the other spouse is the respondent or defendant—but each party’s rights are equal. You each will the opportunity to present issues and express objections, regardless of your official position in the case.
The main exception would be found in the event of fault grounds divorce. Although such grounds are being eliminated as of January 1, 2016, it is still currently possible to petition for divorce on the basis of adultery, abandonment, repeated cruelty, and other negative behaviors. If you choose to file grounds of fault, you, as the petitioner, will be required to prove your allegations to the court.
Despite having no legally specified advantages, filing first may be advisable in certain situations. If you and your spouse are planning an uncontested divorce with little disagreement and most of your arrangements already determined, there is no reason to race to file. However, if you expect a great deal of contentiousness and a long, drawn-out litigation, you may wish to play the role of petitioner. This can allow you to seek immediate, temporary orders for spousal support, child custody, and other concerns.
Doing so may also give the some measure of control over the proceedings, in that your requests will be on file first and that you will be typically given the first opportunity to speak. In effect, this amounts to little more than procedural benefit, since your spouse will be forced into a more reactive position rather than a proactive one. With the assistance of a qualified divorce lawyer, you may be able to take a small advantage and use it to its full potential throughout the proceedings.
If you are considering divorce, it is essential to be prepared for the process. Contact an experienced Kane County family law attorney for help in developing your plan. Attorney Doug Warlick is committed to the service of his clients and will work hard in pursuit of the favorable outcome that you deserve.