Does it matter who files first?

DOES IT MATTER WHO FILES FIRST?

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Illinois is a no-fault divorce state, which means it generally doesn’t really matter who files for divorce first. Since no one has to prove a reason for the divorce aside from irreconcilable differences, being the first to file has no real legal advantage. In other words, your property rights and parental rights are the same regardless of whether you filed for divorce, or your spouse filed for divorce.

That said, there can be some benefits associated with filing first in Illinois. These advantages may or may not be an issue in your specific case. The first potential advantage is that you choose the jurisdiction. You may have a choice of where to file for divorce if you and your spouse live in different counties or states and/or you have established residency in multiple states. Different divorce laws may apply to your case, depending on where you file. In these cases, being the first to file lets you pick the jurisdiction with the laws that have the potential to be most advantageous to you and your case. In addition, by filing a petition for divorce, you will have a little more control over the proceedings. At court hearings and at trial, you will likewise get to present your case first, letting you frame the evidence, issues, and arguments in a manner most favorable to you.

If you decide to pursue a divorce before your partner does, you get a head-start on preparing your support network. By the time you file your divorce papers, you will likely already have a divorce attorney and have located and gathered the necessary documents and witnesses. By contrast, your spouse will have a limited amount of time before the divorce proceeding gets underway. In Illinois, a spouse has only 30 days to respond after being served divorce papers. Even if your partner has anticipated the impending divorce, your filing sets off official deadlines that the other party will have to keep up with.

When one or both spouses have significant assets, real estate, investments, or business ventures, the spouse who files for divorce can include a temporary restraining order, which prevents both you and your spouse from making significant changes to finances or estate during the divorce proceedings. This is particularly beneficial if you believe your spouse is hiding assets. The restraining order prohibits your spouse from buying, selling, borrowing against assets, or otherwise muddying their financials.

Not all divorces are amicable, and not all couples have the same ideas about what is best for their children. If you file first for a divorce in Illinois, you can also file a motion that preserves the status quo for your children, including where they live, what their daily schedule and routine is like, and how parenting time works out until the court rules on the matter further. This prevents major disruptions in your children’s lives that would not be in their best interests.