Should I File For Divorce Before My Spouse Does?

 Posted on January 22, 2021 in Divorce Procedure

Wheaton filing for divorce attorneyThe divorce process is likely to be rife with challenging decisions and difficult considerations for you and your spouse to manage. The two of you will need to deal with both your current situations, as well as your expectations and plans for the future, especially if you have children together. Among the myriad concerns that most couples face is the decision regarding who should be the one to file the formal divorce petition and when the petition should be filed. Is there an advantage to filing before your spouse does, or does it really matter who files first? The answer, as with most divorce-related questions, is that it depends on your unique circumstances.

Are There Legal Advantages to Filing First?

For the majority of divorcing couples in Illinois, filing first does not offer any special advantage from a legal perspective. The titles that will be used in your proceedings will be different depending on who filed first. The filer is referred to as the “petitioner” or “plaintiff,” and the other spouse is known as the “respondent” or “defendant,” but both parties have equal rights and responsibilities during the proceedings. You will have opportunities to bring up issues and express your objections whether you are the petitioner or the respondent.

The ability to allege and prove a claim against your spouse is also not contingent on which party filed for divorce first. For example, you can raise a claim of dissipating assets, or be required to defend against one, regardless of who filed the initial petition for divorce.

What About Strategic Benefits?

While there may not be any legal advantages to filing first, doing so may be a good idea in some situations. If you and your spouse already have most of your settlement agreement hammered out, it is not worth the effort to worry about filing first. On the other hand, if you are expecting bitterness and a long, nasty fight, assuming the role of the petitioner will get the process started and give you the ability to pursue temporary orders for parental responsibilitiesspousal support, and other considerations.

Filing first may also give you a degree of control over the divorce proceedings. The petitioner is usually given the chance to speak or present arguments first. Essentially, this is not much more than a simple procedural benefit, but it may give you a psychological boost, as your spouse will be forced to take more of a reactive role than a proactive role. With your attorney’s help, you might be able to take such a small benefit and utilize it to its full potential for the duration of the proceedings.

Contact a Wheaton Divorce Lawyer

If you are thinking about a divorce, you need to be prepared for the road ahead. Contact one of the experienced DuPage County family law attorneys at Andrew Cores Family Law Group to get the help you need. Call 630-871-1002 to schedule a free consultation and case review with a member of our team today.



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