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STG Divorce Law

The Truth About Filing For Divorce First

No one ever said that filing for divorce would be easy. In fact, it can be downright difficult. There are so many things to think about – the good, the bad, and the ugly. What will happen to my house? Will I have to move? How will this affect my children? These are just a few of the questions that often run through people’s minds when they are considering filing for divorce. In this article, we will take a closer look at what happens after you file for divorce in Illinois.

What Does Filing for a Divorce Actually Do?

People considering filing for divorce in Illinois have many questions about the divorce process. Some of the most frequent questions we get asked as divorce lawyers are – “What does filing a divorce case actually do?” and “What advantages are there to filing, and what happens next?

So let’s break down what happens when you file a divorce in Illinois and go over the advantages and disadvantages of filing first.

Making It Official Matters

Stopping The Clock on “Length of Marriage”

Filing stops the “clock” on the length of the marriage. This is extremely important to understand because “length of marriage” is used in so many areas under Illinois law. For example, the length of a marriage is used for the calculation of maintenance (formerly known as alimony), child support, and division of assets. So if you are the likely payer of maintenance, this can limit your liability.

Download Our Ultimate Guide to Illinois Maintenance for More Information

Moving The Divorce Process Forward & Why It’s So Important

Filing for divorce makes things official, which gives you some idea of an endpoint – or a goal if you will. Even if it is 12-36 months in the future (depending on the county where your case is filed). At some point, the Court is going to demand progress and the case will move ahead, and in some cases will even push it to a trial, if you can’t reach an agreement. At our firm, almost every client we work with, whether it’s mutual, one-sided, or just complicated will say to themselves – “I Just Want This Done” and that is completely normal. There are so many reasons not to drag out a divorce, we even wrote a book about it.

The Advantages of Filing First

If you are considering a divorce, no matter what side of the table you’re on, there are several advantages to filing first under Illinois divorce law and in general.

Let’s be clear, depending on your situation, filing first doesn’t automatically give you the upper hand in negotiations and allow you to just set the terms of the divorce, but it does come with significant advantages that can work in your favor throughout the divorce process.

  1. You have a better chance of getting your choice of attorney. In legal speak, the term of art is “conflict of interest.” Under Illinois law – Conflict Of Interest Rule 1.7 a conflict of interest is an ethics rule that prevents attorneys from entering into a representation of a client when that representation conflicts with the interests of another client or with the interests of the attorney. If you are the party that files first, you can have the advantage of hiring the best divorce lawyer of your choosing.
  2. Filing for divorce first gives you access to the judge. If the other spouse does something bad and you need to take action to protect your money, yourself, or the kids (outside of an emergency order of protection which is available at any time and can be obtained the same day) – filing for divorce first will give you the ability to see a judge much faster than if you were the second spouse to file and your divorce lawyer can help facilitate this much quicker.
  3. Filing may help you obtain records and other information that you need for your case. You can use discovery tools like interrogatories, requests for document production, subpoenas, and depositions to request financial and other records and testimony from witnesses. If you are filing for divorce first, the filing party is called the “Petitioner” and the other spouse is called the “Respondent”. By definition, the courts can force the Respondent to comply with requests for records.
  4. Filing first means at the trial you get to present your case first, and you also get the last word. While this may not have “legal” authority, people are still people and the court of opinion is reality. This is extremely important because, as we all know, first impressions matter and the last words spoken are usually the ones that people remember.”

The Potential Drawbacks of Filing First

Filing a divorce is not all butterflies and rainbows. There are some definite drawbacks that come with filing for divorce, especially if you have a contentious relationship with your spouse, and make the decision to file first.

  1. One of the biggest drawbacks is costs. Depending on your unique situation, divorce can get expensive. While attorney’s fees can add up it’s nothing compared to what can happen if you and your spouse can’t agree on key issues and have to go to trial. Additionally, filing for divorce first can put you at a disadvantage if you’re not prepared. If you’re the one filing and your divorce isn’t mutual, be prepared for an uphill battle. The other spouse now has control of the narrative and will likely use that to their advantage.
  2. Additionally, filing first can also result in a longer divorce in certain cases. If you’re the one who files, the divorce process can’t start until your spouse is served with the divorce papers. Once they’ve been served, they have 30 days to file a response. If they choose not to respond, then you can move forward with a default divorce. However, if they do respond, then you’re in for a long battle as now both sides have to come to an agreement. So what’s the bottom line? The decision of whether or not to file first in your divorce should be made after careful consideration and discussion with your divorce lawyer. There is no one-size-fits-all approach.
  3. Filling first can come across to your spouse/partner as a declaration of war. If you are trying to negotiate, filing a case may cause the other person to stop negotiating, the equivalent of “I’ll see you in court!” They may take the news very negatively. This is why in the typical case using Collaborative practice methods or mediation, we prefer to avoid filing a divorce case until the issues in the case are settled and we have signed settlement documents. We can then file the divorce case, and attend court only one time to get divorced, keeping time and expense to a minimum.

Knowing The Facts Crucial

The process of filing for divorce in Illinois is not as simple as filing a petition with the court and waiting for a judge to grant the divorce. There are many factors that go into filing for divorce, and it’s important to be prepared before taking any legal action.

If you are considering filing for divorce and want the best possible outcome for you, your family, and your finances, you should schedule a consultation with a reputable and knowledgeable divorce attorney in your area as soon as possible.

For more information about the divorce process and answers to common questions, we encourage you to check out our resource library or, contact us today and speak with a member of our team.

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