Does it matter who files for divorce first?

wedding ring on a finger

Divorce is rarely easy for either party. However, there may be strategic advantages to filing for divorce first in some cases. From the element of surprise, to choosing the court location and regaining control over your life, being the first to file for divorce can sometimes be an effective strategy.

So, we answer the critical question, does it matter who files for divorce first?

Why Being the First to File for Divorce Can Be Important

Choosing to file for divorce before your spouse is a strategic decision. It may give you the upper hand in certain situations. If you are still determining whether filing first is right, it is best to speak with a seasoned divorce lawyer about your case. Each divorce case is unique, and a divorce attorney can offer personal insights into your situation.

Here are some general benefits you may receive if you file first.

The Element of Surprise

Your spouse may not be expecting a divorce. This surprise can prove unsettling, which may give you an advantage.

In this scenario, you should use your time wisely to plan, apply for new credit cards, open new bank accounts, figure out where you will live, hire a family law lawyer, and figure out custody schedules that work for you. If you surprise your spouse, you have a chance to prepare mentally.

Choose the Court Location

It is not always possible to choose the court location. However, if you and your spouse live in separate states, the person who files first will choose where the divorce will occur. Different states have different laws surrounding the division of marital assets and debts, alimony, and child custody.

One state may be more favorable for your case than the other. Contacting an experienced divorce attorney is an easy way to determine which state’s laws would most benefit your scenario.

Aside from strategically choosing a state, there is the factor of convenience. If your spouse resides three hours away, you must travel to their courthouse for all divorce-related matters if they file first.

Your state could have time limits attached to the filing. For example, if you or your spouse recently moved to another state, it is possible that the minimum time limit still needs to be met. In specific cases, it may be significantly better to wait an additional month or two before filing. In other cases, the benefit may not be significant enough to cause delay.

You must reside in Illinois for at least 90 consecutive days before filing for divorce.

Time to Prepare

Filing first gives you plenty of time to prepare for life after the divorce. It allows you more time to get everything together, like estimating child support. Your spouse may only have a few weeks to reply to your filing, depending on where you file. In Illinois, the response must be within 30 days.

You should also use this time to financially prepare yourself for the divorce. Gather copies of all of your financial records and account numbers. If you think you may face a custody battle, you should begin to gather evidence.

If you are currently unemployed, start applying for jobs. Open credit card accounts if you do not have any. It is better to start these tasks before moving forward, if possible.

Control the Pace of the Divorce

Whoever filed for divorce usually has more control over the case’s speed of progression. When you file first, you choose the location, and your spouse must respond based on the court’s timeline. While your spouse considers their response, you will be working on your next move. Staying a step ahead can have benefits in a divorce case.

Prevent Your Spouse from Hiding Assets

When divorce enters the conversation, some spouses will try to hide assets. They may transfer property assets to relatives or move money into unknown accounts.

If you have gathered all the necessary information on your and your spouse’s finances and assets, it will help ensure the court splits communal property equally.

Make the First Impression

The spouse who files first will dictate the petitioner’s statement about the grounds for the divorce. These allegations will be the first information the court sees about your case. When you file first, you control this statement. It is now up to your spouse to sway the court’s opinion.

Get the Last Word

When you file first, you become the plaintiff, and your spouse becomes the defendant. The plaintiff gets to speak first, and the defendant has an opportunity to respond. Then, the plaintiff has an opportunity to respond to the defendant. This gives the plaintiff the first word and the last.

The opportunity to speak last could be critical in your case, depending on what is said.

First Opportunity to Request Temporary Orders

The spouse who files for divorce can request temporary orders on issues like custody and support before notifying their spouse of the divorce filing.

These orders may:

  • Protect one spouse from the other
  • Grant temporary child support
  • Award temporary child custody
  • Limit what each can do with marital assets.

The other spouse will also be able to request temporary orders, but not until after they have responded to your petition.

It Feels Good to Take Control

Some spouses leave a marriage due to their lack of control within the relationship. Filing for divorce first can help you regain a sense of control over your life and give you the confidence you need to move forward. Filing for divorce puts you back in the driver’s seat.

If it has been a while since you felt in control of your life, it could signify an unhealthy marriage. In bad marriages, often the best solution is to leave.

Does One Spouse Always File First?

Depending on the state you choose to file in, some states allow couples to file a joint petition or an uncontested divorce. Illinois does allow uncontested divorces without waiting periods for couples who are separating on fairly amicable terms. However, this option is not usually realistic for high-conflict divorces.

Uncontested Divorce

With an uncontested divorce, both parties agree on the divorce issues, from the division of debts and assets to child care. They also both accept the decision to dissolve the marriage.

The benefits of this method include a speedier divorce process and lower attorney fees. If there is nothing left to fight over, the process can move more efficiently, and, likewise, there is less work for attorneys to do. This can save both parties money.

Besides generally agreeing on everything, you must articulate these agreements clearly in a divorce settlement agreement.

Divorce Settlement Agreement

Your divorce settlement agreement will be drawn up and filed with your petition. It should include specifics, like:

  • The reason for your divorce
  • How you will split the court’s filing fee
  • How you will divide the marital debts and assets
  • Whether spousal support will be paid, by whom, in what amount, and for what length of time.

If there are children from the marriage, you should include the following:

  • Which spouse will act as the custodial parent
  • A parenting schedule for the non-custodial parent
  • Child support amounts the non-custodial parent will pay.

It is possible to devise a divorce settlement agreement, but hiring a family law attorney can help ensure the agreement is acceptable and enforceable.

However, if either spouse disagrees with any divorce terms, the case shifts from a less-costly uncontested divorce to a contested one. It is almost always recommended to hire legal counsel in a contested divorce.

Frequently Asked Questions (FAQ)

The following are clients’ frequently asked questions and their answers to filing for a divorce.

  • Does It Matter Who Files for Divorce First?

    Yes, it does. Filing first can give you several benefits, including the power to determine where the divorce is filed. This is particularly important if you live in separate states. A knowledgeable family law attorney can help determine if filing first would give either party an advantage in your divorce.

  • What is the First Thing I Should Do if I Want a Divorce?

    The first legal step in a divorce is filing a divorce petition. A skilled divorce lawyer can help you draft and file this petition. This will mark the official start of your divorce, legally.

  • What is the First Step in Filing for Divorce in Illinois?

    In Illinois, your first step for filing a divorce is to submit a petition for divorce in the county where one of you resides. However, many people consult a family law attorney about the process before filing a divorce petition.

  • What Makes Divorce More Costly?

    The factor that tends to make divorce more or less costly is whether the couple can agree on the divorce terms. The more the couple disagrees, the more expensive it becomes. This is largely due to additional legal fees that require more time from both parties’ lawyers.

Contact a Divorce Lawyer at Wolfe & Stec

Whether you are ready to file first or your spouse surprised you with divorce papers, we can help protect your rights. Have an expert divorce lawyer at your side.

Call Wolfe & Stec for a free consultation today at 630-305-0222 or contact us through our website.

Attorney Marc Wolfe

Marc Wolfe has been representing clients in criminal matters in Chicago and the entire State of Illinois for over 30 years. Mr. Wolfe has tried over 300 cases to verdict and represents clients facing investigation or prosecution for a broad range of state and federal criminal offenses, including murder, embezzlement, sexual abuse, drugs, marijuana and white collar crimes. [ Attorney Bio ]