The decision to get divorced is never an easy one. For most couples, in fact, the final decision comes after months and months of consideration, and possibly years of unhappiness. Even after the decision is made, however, the spouses may spend another few months living separately and going about their lives but knowing full well that one of them will need to get the process started eventually.
If this describes your situation, you probably recognize the emotion of feeling stuck in limbo. Make no mistake, filing a divorce petition is a serious thing. While the logistics of filing the petition are relatively easy, the emotional and psychological elements of taking such a step may be quite difficult for you.
There is also the question of whether you should be the one to file for divorce. After all, you both agreed to the divorce, and your spouse has just as much of a right to file the petition. And, does it even really matter who files the petition? The answer to this last question is multi-faceted, but it may hold the key to your decision about whether you should go ahead and get the divorce process moving.
Divorce as a Civil Proceeding
There are many specialized laws that apply to the divorce process in Illinois. Over time, these laws have caused divorce to be seen as a unique type of legal proceeding. This is certainly true, to an extent, but at its most basic, a divorce is still technically a civil lawsuit. In fact, it is a lawsuit in which one party asks the court to dissolve a contract—specifically, the marriage contract—that he or she has entered into with another person.
Because it is a civil lawsuit, every divorce, therefore, has a plaintiff and a defendant. The plaintiff is the person who brings the lawsuit, and the defendant is the party against whom the lawsuit if filed. As stated above, divorce is a special kind of civil proceeding, and in Illinois, the process is largely governed by the Illinois Marriage and Dissolution of Marriage Act (IMDA), which is found in Chapter 750, Act 5 of the Illinois Compiled Statutes. In regard to a divorce proceeding, the IMDMA makes reference to a “plaintiff” and “defendant” exactly one time each. Instead, the preferred terms are “petitioner” and “respondent.”
The Legal Questions
As you might expect, the “petitioner” is the plaintiff—the party who gets the process started by filing the petition for divorce. The “respondent” is technically the defendant, and he or she has the opportunity to respond to any filings made by the petitioner. Which brings us back to the question: does it matter if you are the petitioner or defendant in your divorce? And again, the answer is complicated.
From a legal standpoint, both the petitioner and the respondent have the same rights, responsibilities, and opportunities during a divorce once the petition is filed. Both parties can present arguments and evidence, file motions, and ask the court for various considerations. Likewise, both parties can challenge arguments and evidence presented by the other side. Once the proceedings have started, there is no particular advantage or disadvantage to being either the petitioner or the defendant.
Deciding on Venue
As things get started, however, there may be at least one advantage to filing first. This advantage could potentially come from choosing where your divorce case will be held. A divorce is considered a state-level civil matter, which means that the proceedings are held in a county circuit court. It is up to the petitioner to decide in which county he or she will file the petition.
The IMDMA specifies that a divorce proceeding is to be held in the circuit court of “the county where the plaintiff or defendant resides.” Yes, this is the one reference to the plaintiff and defendant in the entire IMDMA. The law goes on to say that the petitioner can file the petition for divorce in any county in the state if the petition is accompanied by a request for the court to waive the normal venue requirements. If the non-filing spouse objects to the choice of venue, he or she must file the objection with the initial response to the divorce petition. Objections that are raised later will not be heard, and the respondent will not be entitled to appeal the divorce judgment on the basis of where the case was handled.
With all of this in mind, being the spouse who files could allow you to determine the county where the case will be heard. This could be helpful depending on a number of factors, including your attorney’s familiarity with the judges and staff in a particular county, as well as the court’s reputation for divorce-related procedures and rulings.
Other Possible Advantages
While the legal benefits of filing for divorce before your spouse files are rather limited, there are some very good reasons that you might consider “taking the bull by the horns” and filing the petition first. For example, you might be a person who prefers to be proactive instead of reactive. When you file the petition for divorce, you take initial control. You get to clearly state that you wish to dissolve the marriage, and you can clearly lay out what you want to get out of the divorce, including any requests for spousal support, a share of the marital estate, and your preferred parenting arrangements. If you wait for your spouse to file, you will still be able to ask for what you want, but you will need to counter his or her requests first.
There is also the issue of preparation. If you have all of your affairs in order—including your finances—and you are pretty sure that your spouse does not, filing the petition for divorce could be beneficial for you. This is to not suggest you should take unfair advantage of your spouse, but there is nothing stopping you from pushing the proceedings forward. If your spouse has a valid reason for not being ready, he or she can ask the court for the time that he or she needs. Your filing, however, could put your spouse on the defensive, which might give you some leverage during the proceedings. It is important to keep in mind that this strategy could backfire, turning a relatively amicable divorce into one that is more bitter and contentious that either of you intended.
Get the Help You Need
If you are thinking about filing your petition for divorce, an experienced DuPage County family law attorney can help you make sure that you are fully prepared for the road that lies ahead. Your divorce is likely to involve a number of complex issues, and it is important that you know what to expect. With our guidance, you will be ready for any challenges that may arise as you seek the happier, healthier future that you deserve.