Does it Matter Who Files for Divorce First in Illinois?

If you’re pursuing divorce or know that your spouse wants to end your marriage, you might be wondering if it matters who files for divorce first in the state of Illinois.

In addition to the grief one feels when a marriage is ending, divorce proceedings themselves can be emotionally taxing—particularly when there are children involved.

In many divorces, who files first normally doesn’t have much of an effect on the formal process of dissolving a marriage. There are some instances, however, where who files first might have some impact on divorce proceedings.

Our team at Diamond Legal helps the people of McHenry, Lake, and Kane Counties through all types of family law issues, which is why this we’ll discusses the ways in which filing for divorce first can matter in some circumstances.

Are there any advantages to filing for divorce first?

Some people might think that filing first gives one party an advantage over the other in a standard divorce. This might be because of how conflict is resolved in our personal lives.

For instance, when relationships break down in our personal lives, we rarely see both parties’ perspectives at the same time. When both parties aren’t present to speak for themselves, whoever gets to tell their side first can have an advantage.

Fortunately, court proceedings are quite different from interactions in our personal lives. In court, both sides are presented to a judge with both parties present.

When cases are presented, all parties have equal opportunity to present their case, question witnesses, and cross-examine those testifying. When divorces are filed citing irreconcilable differences, the focus of court proceedings will be on resolving any disputed issues whether big or small.

These issues could be such matters as: 

• Division of marital assets and debts, 
• Maintenance (alimony), 
• Child support, 
• Custody, meaning allocation of parenting time and decision-making, etc.

In cases like these, who files first will likely not present a significant advantage or disadvantage. The party filing for divorce first will need to pay court fees; however, they can request that the court order that some or all of the fees be repaid to the petitioner by the respondent.

Should I File First if My Spouse Cheated on Me?

Illinois is a no-fault divorce state (without regard to misconduct). In 2016, the state abolished fault divorces where one party is responsible for proving fault such as infidelity or abandonment.

As a no-fault state, Illinois divorce proceedings are typically not concerned with the circumstances that ended a marriage; unless, of course, these issues might directly affect children or the parties’ financial situation.

Issues like severe drug abuse or a history of violence toward children will likely also play a role in how parenting time and other responsibilities are divided between spouses.

Infidelity (cheating) usually bears no effect on who should file for divorce first.

Are There any Benefits to Filing First in Divorce?

If the parties live in separate counties, the case can be filed in either county. One benefit to being the first to file is to start the case in the county you want. 

A marriage breaking down is confusing and traumatic. Everyone handles stress and grief differently. Some parties wish to get proceedings over as soon as possible, while others may take their time adjusting to their new normal.

Another benefit to filing first is to get the process started as soon as possible. After court paperwork is reviewed, dates for hearings will be set. This can be an advantage for parties who fear that their spouse might drag their feet.

I Want a Divorce: When Should I Contact a Lawyer?

We usually recommend that you talk to a qualified divorce lawyer before discussing the matter with your spouse. This way you will have a better idea of what your rights are and what the likely end result will be. It also gives you time to figure out the best strategy to present this to your spouse.

No matter your situation, it is important to speak with an attorney before attempting to file paperwork. An attorney can help you understand your rights, the process of having a divorce granted, and steps you can take to make the process smoother for yourself and your loved ones.

Diamond Legal Can Help

Our firm, Diamond Legal, helps families with divorce and custody cases. We have experienced and compassionate attorneys who will help you navigate the complexities of family court.

If you have questions or would like to schedule a consultation, contact our McHenry, Illinois law firm at (815) 322-8403.

DISCLAIMER: Any information contained herein is solely for informational purposes. While it is important that you educate yourself, nothing herein should be construed as legal advice or create an attorney-client relationship. For specific questions, we urge you to contact a local attorney for advice pertaining to your specific legal needs.