Filing for divorce is often a difficult decision, even for a separated couple that knows that their marriage is over. However, when it is clear that a divorce is imminent, some spouses rush to file for the divorce in order to beat their ex to it. Legally speaking, filing first does not make that much of a difference in an Illinois divorce.
Parties can pursue a no-fault divorce in Illinois, and no particular wrongdoing has to be alleged against a spouse in order for the other spouse to be granted a divorce. Therefore, even though filing first allows a person to present his or her case first in court, it does not guarantee victory on the merits.
Filing first may give you an advantage when it comes to choosing where the case will be heard. If you file first and live in a different county or city from your spouse, you can file for the divorce at a location that is most convenient for you, assuming you meet the residency requirements for a divorce in Illinois.
Illinois judges are required to divide marital assets, and award alimony and child support, in accordance with established statutory guidelines as well as case law. Therefore, regardless of which party files for divorce first, the main issues in the case will be decided on these principles, and not by who won the race to the courthouse.
When filing for emergency orders that may be part of the reason the couple is getting divorced—for example, emergency orders of protection in cases of domestic violence, or emergency orders seeking child custody and support—then it could make a difference with regard to which parent files first. Filing first could make a difference because it may mean getting immediate relief if the other parent is abusive or is likely to take the children and disappear. However, if the other parent has notice of the proceeding, then he or she could file a counter petition asking for custody as well.
There may be psychological and emotional victories in filing for divorce first. Filing first could be an expression of independence and a sign to your ex that you have moved on. If you file first, you can also decide what time is best for you to deal with some of the stress that may come with going through a divorce. If you choose to file a divorce first, you need to be prepared in case your spouse does not take the move well and decides to take it out on you by refusing to be reasonable throughout the process.
Let Us Help You Through the Process
If you have decided to file for a divorce, you need to consult an experienced DuPage County divorce lawyer in order to find out more about the process and what to expect once the paperwork is signed. Contact Momkus McCluskey LLC for more information.