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

DuPage County divorce attorneyIt is a trope that is played out in movies and on television regularly: a married couple is unhappy—possibly even separated—but neither wants to take action and file a petition for divorce. This situation could just as easily happen in real life. For some people, there may be a psychological barrier that prevents them from being the one to formally ask for a divorce. While such feelings are understandable, you may be able to reap a few unexpected benefits by filing your divorce petition before your spouse does.

The Legal Side

From a legal perspective, there is not much advantage to be gained by being the first to file. Unlike other types of civil court proceedings, there is no burden of proof that is automatically assumed by either side. This is especially true since Illinois eliminated fault-based divorce in 2016. Technically, the spouse who files is the plaintiff or petitioner, and the other spouse is the defendant or respondent. Both parties have equal rights to make requests, present evidence, and file motions.

Even the title of a divorce case sets it apart from other civil cases. A lawsuit that you filed against an insurance company, for example, would be formally called Your Name v. XYZ Insurance Co. By comparison, a divorce action between Mr. and Mrs. Jones would be called In Re Marriage of Jones.

Practical Considerations

There are two primary benefits that could come with filing before your spouse does. The first is that filing for a divorce requires preparation. If your spouse has not filed, it could be because they have not put their affairs in order yet. By doing the necessary work and filing first may give you a sense of control over the situation that you might not feel otherwise. You being proactive will also put your spouse on notice that you will not wait for him or her any longer.

The other main benefit is that the petitioner in a divorce case is able to choose the county in which the case will be heard. Illinois expects that divorce proceedings will be held in the county where either you or your spouse resides, but you may have a good reason for choosing a different county. Once you select a county, it will be up to your spouse to show that your choice is not appropriate. Doing so may be challenging for your spouse, especially if one of you lives in the selected county.

Call Us for Help

Filing for divorce before your spouse does may sound appealing, but it is important that you do not file until you are truly prepared. Before taking action, contact a DuPage County divorce attorney to discuss your unique circumstances. Call 630-665-7300 to schedule a confidential consultation at MKFM Law today.



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From our law office in Wheaton, IL the family law and civil litigation law attorneys of Mirabella, Kincaid, Frederick and Mirabella, represent businesses and individual clients throughout the western suburbs of Chicago, Illinois including Wheaton, Naperville, Oak Brook, Glen Ellyn, Carol Stream, Lombard, Downers Grove, Burr Ridge, Lisle, Elmhurst, Oakbrook Terrace, Winfield, Woodridge, Warrenville and throughout DuPage, Kane and Kendall Counties.

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In honor of the passing of our founder, Joseph F. Mirabella, Jr., our offices are closed Friday, January 31, 2020.I Agree