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Garrett Miller

When considering divorce, the thought might cross your mind that filing to terminate the marriage before your pending ex-spouse serves you with divorce papers could put you in a better position in the divorce process.  Is it better to be the one who filed for divorce? To answer the question what is the advantage of filing for divorce first, or does it even make a difference who files first, we need to understand the complicated divorce process.  Divorce is different state by state, this article will provide general insight and some law specific to Illinois. The most important aspect of a divorce proceeding is always going to be how well informed you are, and working with a qualified divorce lawyer is critical to this.  In this article, we will specifically answer the following questions:

  • What is the divorce process?
  • What is divorce mediation?
  • How can I protect my assets during a divorce trial?
  • Are there any advantages of filing first in a divorce case?

What is the divorce process?

To summarize the divorce process in brief, it can be useful to think of a divorce case having three distinct stages. These stages include the temporary relief portion, the period of discovery, and the resolution of the case.  The temporary relief portion of the case refers to the period after which a party has been served with Summons and a Petition of Dissolution informing them their spouse has petitioned a court to terminate their marriage, and before the beginning of the divorce case proper.  During this time, and throughout the divorce proceeding, parties are forbidden by the court from engaging in harassment or intimidation.  Behavior which could be construed by a fact finder as abuse can qualify as violating this prohibition.  During this period of the case, and at any time during the proceeding case, a party can motion for temporary relief. Temporary relief is a fact-based determination made by the court to award the motioning party with an order alleviating an issue related to the divorce proceeding.  This relief can take several different forms, from a temporary order of child support to assist with the costs of parenting during the litigation, to temporary attorney fees in which the opposing side is compelled to cover the cost of litigation.  Awards are based on the unique circumstances presented to the court.  One temporary relief order to consider if your spouse earns significantly more than you, or was the sole bread winner, is a temporary order of Maintenance.  If awarded this order compels the opposing party to provide financial support through the litigation.

During the discovery phase, information is requested and provided to the parties and the court.  Discovery can be a complicated matter, if there is significant financial assets or children of the marriage.  If the marriage is relatively young and the parties did not have children together, discovery will be much simpler.  As part of discovery, you will need to disclose a Financial Affidavit. This document includes your income, expenses, debts, and any other relevant financial information.  Interrogatories are used to collect information from the opposing side and consist of a list of questions that are relevant to the proceedings.  The Financial Affidavit serves as the basis for which child support and maintenance is calculated.  States often provide straightforward calculating tools to determine financial responsibilities in divorce.  In Illinois, child support is generally a set percentage of income based on the number of the children and the time in which the children will be in the respective parent’s care.  If there are children involved with the marriage, a parenting plan will be set, defining parental responsibilities between the parties.  The parenting plan can either an agreement between the parties, subsequently approved by the court, or if the discussion is too contentious for an agreement, a determination by the court based on the facts of the case.

The resolution period is the end of the case.  This can come as a court decision in which the judge makes final determinations, or more likely as a settlement between the parties.  Generally, it is preferable to negotiate with the opposing party, when possible, to avoid the pitfalls of litigation, and most cases end in settlement.  Court encourage settlement where possible.  If negotiation is not practical due to contention between the parties, the court will make a determination based on the facts of the case.  Illinois is an “equitable distribution” state.  This is contrast to equal distribution states in which marital property is split 50/50. In equitable distribution states, courts look at the facts surrounded a piece of property to make a determination on its distribution. To learn more about these phases in expanded detail, please check out this article detailing the Illinois Divorce Process.

How can I protect my assets during a divorce trial?

A potential tool to consider in a divorce is a temporary financial restraining order.  If you believe the marital assets are at risk, this is a proactive step you can take to place them under court protection.  Threatening situations can include when a spouse is in the process of emptying a bank account, hiding assets, outright destroying property out of spite, or engaging in a pattern of reckless spending.  Once awarded, a financial restraining order places the marital property under the supervision of the court.  The parties will need the courts approval to make purchases with joint accounts, dispose of major assets, or transfer assets that could cognizably be considered marital property.  Note that this award is not completely comprehensive, court approval will not be necessary for mundane everyday purchases.  A financial restraining order lasts for at most a 30-day period.  To extend the order beyond that timeframe you will need to petition the court, at which point the parties will be subject to a hearing in which the court will determine if the order is still necessary. For more information on financial restraining orders, please check out our article on Financial Restraining Orders to Protect Your Assets During a Divorce.

Are there any advantages of filing first in a divorce case?

As with most questions in divorce law, the answer to whether there is an advantage to filing first is: it depends.  From a legal disposition standpoint, there is no serious impact to the case if you are a petitioner, that is the first filer, or a respondent, the spouse who was served divorce papers.  You will not be disadvantaged in the eyes of the court and will be provided time to respond to your spouse’s claims, if you find yourself in the position of the respondent.  If you live near your spouse, the advantages to filing first simply are the advantages of initiating the divorce proceeding, kicking the process off, and bringing about an end to this difficult period in your life.  If you do not live near your spouse, there is potential benefits in regards to the venue for your proceeding.  If you are in the same state, by filing in your county you can limit the distance you will need to travel for court appearances.  More importantly, if you live in a different state than your spouse, you may be able to take advantage of the laws of the state you file in, depending on if the other rules which govern jurisdiction are met in your case.  This can have a big impact, as each state has different sets of laws concerning child support, custody, and the disposition of marital property.  Note that in either case, your spouse will have the opportunity to petition the court to change the location of the litigation, with the determination depending on the circumstances surrounding your marriage and divorce case.

Request a consultation with a qualified divorce attorney.

When considering divorce, your representation can make all the difference. Working with an experienced divorce attorney is critical. Call our office at (630) 324-6666 or schedule a consultation with one of our qualified divorce lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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