Should I Try to File for Divorce Before My Spouse Does?

 Posted on May 25, 2026 in Divorce

There are many reasons spouses could want to be the first one to file for divorce. It may be based on emotions. For example, you’d rather leave than be left. It could be practical, like the relationship isn’t working, but your spouse isn’t going to file. Someone has to get the ball rolling.

It’s common to assume that filing first will give you an advantage going into the rest of the divorce proceedings.  However, filing first doesn’t typically change the final divorce settlement. However, there are a couple of things that the filing spouse gets to decide on. A Wheaton, IL divorce lawyer can help walk you through the entire filing process in 2026 and decide if filing first matters to you.

Does Filing for Divorce First Give You a Legal Advantage in Illinois?

Under 750 ILCS 5/401, the only grounds needed for divorce are irreconcilable differences. This means the marriage cannot be salvaged. Divorce proceedings aren't meant to punish either spouse, even if something like infidelity led to it. The court also doesn't reward whoever filed first when dividing assets, setting support amounts, or allocating parental responsibilities and parenting time.

That said, being the petitioner, meaning the spouse who files first, does come with a few procedural perks that many people want.

The Venue

The petitioner gets to choose the venue. Under 750 ILCS 5/104, divorce proceedings are filed in the county where either spouse resides. If you and your spouse live in different counties, filing first lets you choose which county handles your case. Different counties can have different court cultures, docket speeds, and procedural norms. There's also the potential travel time if the case is filed in a different county.

The Order of Presenting at Trial

In a contested divorce, the spouse who filed goes first in presenting evidence and arguments. This isn't a decisive advantage, but it does allow you to frame the narrative of the case first.

Preparation Time

Filing first gives you time to prepare. By the time your spouse is served and responds, you've already had time to gather financial documents, consult with a lawyer, and think through your priorities.

These details may not matter in straightforward, amicable divorces. In more complex cases, though, having more preparation time can be a real asset.

Are There Situations Where Filing for Divorce First Really Matters?

If there are concerns about assets being hidden or moved, filing can allow a spouse to request temporary court orders preventing the transfer or dissipation of marital assets. These prevent either party from disposing of marital property without court approval. If you have reason to believe your spouse might transfer money, liquidate investments, or otherwise dissipate marital assets, getting your filing in first can lock the restraining orders in place sooner.

In situations where your spouse lives in a different state, filing first will give an Illinois court jurisdiction over your case. This can affect everything from how property division is handled to how custody is awarded, depending on the state.

If safety is a concern, filing first can be the first step toward getting an emergency order of protection in place quickly. If you are in immediate danger, though, call Illinois’ domestic violence hotline for help and make plans to leave as quickly as possible, filing or no filing.

What Are the Downsides of Filing for an Illinois Divorce First?

There are some cons to filing before your spouse. The petitioner pays the initial filing fees, which will typically run several hundred dollars in DuPage County. The petitioner is also responsible for formally serving their spouse with the divorce papers. This adds another logistical and financial step. Filing also puts the legal process in motion, which will require time, money, and emotional energy until it’s over.

What Should You Do Before Deciding to File for Divorce?

Regardless of which spouse files, if you know that divorce is on the horizon, you can start preparing. This means getting your financial records in order, i.e., tax returns, bank and investment account statements, retirement account balances, property records, and documentation of any debts. If you have children, make documentation of what kind of caretaking you do for them in case of a contested custody case.

If you’re preparing for a divorce, it’s also time to find a good lawyer. Tell them what your priorities are as you go through the divorce process so they can help keep you on track and work out the best settlement possible for you.

Call a DuPage County, IL Divorce Lawyer Today

MKFM Law is here to help you through your divorce, from start to finish. Our Wheaton, IL family law attorneys will explain all your legal options and protect your interests. We serve family law from our offices located in Kane, DuPage, and DeKalb County. Contact Mirabella, Kincaid, Frederick & Mirabella, LLC at 630-665-7300 to schedule your initial attorney meeting.