Does It Matter Who Files for Divorce First?

 Posted on July 13, 2018 in Divorce

Regardless of what else it may represent, a divorce is technically a civil legal action between two parties that is intended to dissolve the marital contract between them. While this definition of a divorce may seem cold and unfeeling, it is important to separate the legal concerns of the process from those that are more personal or emotional. With that in mind, many individuals who are considering a divorce often wonder if it is important to beat their spouses to the proverbial punch. Does it matter who files the petition for divorce? The answer is not definitively clear.

Divorce as a Legal Action

In most civil legal proceedings, there are clear lines between the opposing sides. On one side, there is the plaintiff, or claimant, who initiates the legal action—usually by filing some type of complaint and request for relief. The defendant, or respondent, is the one against whom the complaint is made. Usually, the defendant is accused of having done something wrong or not have done something he or she was supposed to do. The purpose of the action to hold the defendant accountable for his or her actions or inaction and to make the plaintiff whole again, at least to the extent that it is possible.

Divorce is a different animal, and especially so since Illinois eliminated fault-based divorces in 2016. Under Illinois law, there is no fault to be determined in a divorce, which means the distinction between plaintiff and defendant is much less important than in other cases. In fact, the Illinois Marriage and Dissolution of Marriage Act (IMDMA)—the statute that governs the divorce process in Illinois—largely avoids the terms “plaintiff” and “defendant” in favor the less-adversarial “petitioner” and “respondent.” The IMDMA draws the distinction primarily as a matter of process and timeframes rather than rights, responsibilities, and burden of proof.

Therefore, there is no real legal advantage to be had by filing for divorce first. Both spouses will have equal opportunity to present their arguments, challenge the other’s arguments, and to file motions. The law has been set up to ensure that neither party is given undue advantages throughout the proceedings.

Non-Legal Concerns

None of this is to suggest that you might not realize certain benefits by filing for divorce before your partner does. For example, you may be ready to put your marriage behind you and to move on with your life. If your spouse is not ready, waiting for him or her could be holding you back. Filing first may also allow you to feel more in control of your own life. Acting instead of reacting can help you manage your divorce better from a psychological or emotional perspective.

Last but not least, filing a petition for divorce usually means that you already have your financial and other personal affairs in order. Being surprised by a divorce filing could put you on the defensive—a position from which it can be difficult to recover. Taking action can also demonstrate to the court that you ready to create a better future for yourself and your children.

We Can Help You Prepare

While there may be good reasons to file for divorce first, you should not rush to do so. Before you take any action, it is a good idea to discuss your situation with an experienced DuPage County divorce attorney. Call 630-352-2240 to schedule a free, confidential consultation at Pesce Law Group, P.C. today.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59

https://www.forbes.com/sites/jefflanders/2013/03/26/what-are-the-financial-and-legal-advantages-of-being-first-to-file-for-divorce/