Racing to the Courthouse: Does Filing for Divorce First Matter?

 Posted on January 06, 2017 in Divorce

In most types of court proceedings, there is a clear delineation between the plaintiff and the defendant. The plaintiff—sometimes called the claimant—is the party that has decided to take some sort of legal action against the defendant. In a personal injury case, for example, the plaintiff may have filed a lawsuit to recover financial compensation for injuries that he or she believes were caused by the defendant. Likewise, the plaintiff in criminal proceeding—the state—is seeking a judgment of guilt and criminal penalties against a defendant believed to have committed a crime. Technically, a divorce is no different: the spouse that files the divorce petition is considered the plaintiff, making the other spouse the defendant. But, does it really matter which spouse is which?

Different Terminology

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) is a comprehensive compilation of statutes that govern the divorce process in Illinois. The IMDMA generally avoids the use of the terms “plaintiff” and “defendant,” instead using the more neutral “petitioner” and “respondent” in most cases. This highlights the concept that divorce does not need to a highly contentious battle in which there are clear winners and losers.

For most purposes, there is no distinct legal advantage to being the first to file for divorce. The filing spouse has the option to file the petition in the county of his or her choosing—the law presumes it will be a county in which either spouse resides—but the responding spouse has the opportunity to contest such a choice. The same holds true throughout the proceedings. Each spouse has the same opportunities to present evidence and testimony, file motions, and to be heard by the court. This ensures that neither spouse has an unfair advantage during the process.

Psychological and Emotional Considerations

There may, however, be other reasons that you wish to file your divorce petition before your spouse does so. You may be fully prepared to move forward with your life after divorce, but if your spouse is dragging his or her feet, waiting until he or she is ready may not be your best option. Filing on your terms can also give you a sense of control over your future. There may still be elements of your divorce left to be decided by the court, but a proactive approach can help you feel more secure about your decision.

Finally, filing for divorce first is usually an indication that you have taken the time to get your finances and personal affairs in order. A spouse who spends the entire divorce process on the defensive side can easily become overwhelmed and combative. This can be especially important if you have children, as your definitive action can show the court that you are committed to building a more positive future for yourself and your family.

Seek Legal Advice

The decision to divorce should not be taken lightly, and you should not rush to file your petition just to beat your spouse to the courthouse. Before you file, discuss your case with an experienced Lombard divorce attorney and let us provide the guidance you need along the way. Call A. Traub & Associates at 630-426-0196 for a confidential consultation with a member of our team today.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=0