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Does It Matter Who Files for Divorce First in Illinois?

 Posted on January 21, 2021 in Divorce


The decision to get divorced is never easy, but once you have made that decision, the real work begins. You and your soon-to-be ex-spouse must now decide how you will divide your marital property, share the responsibilities of parenting your children, and build your respective lives after the divorce. One of you must also initiate the formal divorce process by filing the petition for divorce at your county courthouse. At our firm, we are often asked about this, and many clients are curious to know does it matter which spouse files for divorce first.

What Does the Law Saw?

The Illinois Marriage and Dissolution of Marriage, or IMDMA, is a collection of laws that essentially govern the entire process of divorce in the state of Illinois. According to the law, a divorce is, at its most basic, a legal proceeding through which the marital contract between two parties is officially dissolved. Technically, a divorce has a plaintiff and a defendant, but the application of the terms is much less important during a divorce than in other types of legal proceedings, such as criminal or personal injury cases. As a matter of fact, the IMDMA references the parties in a divorce as the plaintiff or defendant in just a single paragraph.

The law, however, makes many more references to the “petitioner” and “respondent.” As you might expect, the petitioner is the party who files the petition for divorce. He or she is officially the plaintiff. The other spouse has the opportunity to file a response to the petition and, as such, is known as the respondent. After the initial filing and response, both parties have the same status in the case. Both have equal standing to file motions, ask for considerations, and introduce evidence. Therefore, from a legal perspective, there is not much of a formal advantage to be had by being the first to file—especially if both spouses are expecting the filing.

Psychological and Emotional Advantages

Filing first can have benefits, however, that are not legal in nature. If you take control by getting the proceedings started, you might gain an increased level of confidence. This could create a more positive outlook for the rest of the divorced process. Likewise, many people believe that by filing first, they can put their spouse in a defensive position, ostensibly giving the filing party the ability to “steer” the divorce in the direction of their choosing. This may not be exactly true from a legal standpoint, but the psychological and emotional effects cannot be ignored.

Get Help from a Wheaton Divorce Lawyer

If your spouse has put you in a defensive mode by filing for divorce, or you would like to explore your options for filing first, contact an experienced DuPage County divorce attorney. Call Stock, Carlson & Duff LLC at 630-665-2500 to schedule a confidential consultation today. We will provide the guidance and representation you need to protect your rights during your divorce.


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