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Does It Matter Who Files for Divorce First?

husband signing decree of divorce, dissolution, canceling marriage, legal separation documents, filing divorce papers or premarital agreement prepared by lawyer.

Being the first to file for divorce provides some strategic advantages. However, being the first to plan for divorce is more significant and provides more advantages than being the first to file. When two people choose to end their marriage, they have to make many difficult decisions regarding their assets, futures, and possibly the custody of their children. Many couples attempt to keep their divorce as amicable as possible by pursuing an uncontested divorce. However, sometimes a couple’s relationship has deteriorated to the point that they have no hope of making an uncontested divorce work. In some cases, one spouse may even be worried that the other spouse will attempt to hide assets or sabotage his or her chances of custody. 

Benefits of Filing First

If a spouse wants a divorce and an uncontested divorce is not feasible, he or she must consider the best course of action. Being the first to file for divorce gives a husband or wife several strategic advantages. However, filing first does not provide any additional rights over his or her spouse. By filing first, a spouse can: 

Choose the Jurisdiction

Whoever files first can pick the county or state where the divorce proceedings occur. Depending on a couple’s specific situation, either spouse may find it advantageous to choose where the divorce proceedings occur. For example, if one spouse still lives in Chicago, but the other spouse has moved out of state, the spouse living in Chicago can ensure they proceed with the divorce in Illinois by filing first. Having the divorce take place in a nearby jurisdiction is always more convenient. There are requirements regarding where a spouse can file for divorce, and he or she should consult their attorney to determine where to file. If the couple still lives in the same area, selecting the jurisdiction is not as important.

Have Some Control Over the Schedule 

When a spouse files for divorce, the clock on the case begins running immediately. The judge in the case schedules discovery, hearing, pre-trial mediation, and trial dates based on the time of filing and rules regarding timing in his or her state. By filing first, a spouse can determine roughly what the schedule of the divorce will be and plan their personal and professional schedule accordingly. He or she can also finish due diligence without feeling rushed. 

Present His or Her Case First 

Most divorce cases settle before they reach trial. However, if the case makes it to trial, whichever spouse files for divorce first will have a chance to present his or her case to the judge before his or her spouse. The judge will hear that spouse’s story first, allowing him or her to make the first impression. He or she can also present a rebuttal after the other side presents its case. The first to file gets two chances to convince the judge. 

There are some disadvantages of being the first to present a case. Whoever goes first must begin preparing their case much earlier. The other side also gets to hear the spouse’s case before presenting their testimony. A person seeking a divorce should consult with his or her attorney to determine whether filing for divorce first, and therefore presenting his or her case first, is strategically advantageous. 

Benefits of Planning First

Although filing for divorce first presents some strategic advantages, a husband or wife thinking about divorce may find that being the first to plan for divorce is even more important. By giving himself or herself more time for planning, a husband or wife can gather information and support that will help him or her be in a better position for the divorce proceedings. By planning first, he or she can have:

First Choice of Professional Help 

When a spouse seeking divorce consults with an attorney, he or she may reveal confidential information. Once a spouse has consulted with an attorney, the other spouse cannot hire that attorney because the confidential information creates a conflict of interest. The earlier a husband or wife begins searching for an attorney, the more likely he or she is to find a reliable, local attorney with whom he or she is comfortable. In very contentious divorce cases, one spouse may attempt to prevent the other spouse from finding an attorney. He or she might consult with multiple lawyers, intending to create conflicts of interest. The more attorneys he or she meets with, the fewer options the other spouse has when searching for legal representation. Finding a local attorney is helpful because the client will have easier access to the attorney, his or her office, and support staff. Further, a local attorney will be familiar with the family law attorneys and judges in the area. For example, a husband or wife seeking a divorce in Cook County should consider hiring a Chicago divorce attorney

Time to Find Additional Support 

Although finding an attorney is important to divorce proceedings, a husband or wife may want time to find additional support to help them through the upcoming months and years. Divorce proceedings are extremely stressful. Many people contemplating ending their marriage may seek a therapist for emotional support. He or she may also take the additional time to consult with a children’s therapist to plan how to tell his or her children about the divorce. He or she may also want advice about custody and co-parenting. Additionally, a husband or wife may want to find financial professionals, such as a forensic accountant, to help plan for his or her financial future.

Time to Gather Documentation

When a husband or wife is thinking about filing for divorce, he or she should gather all documents relevant to property, bank accounts, investment accounts, and saving accounts. He or she should organize all the documents, keep hard copies in a secure location, and keep a digital backup. Having proof of all assets and debts can help him or her prove to the court what their portion of the marital assets should be.

Time to Protect His or Her Finances 

A husband or wife planning for divorce can plan for a healthy financial future. He or she can start saving money to pay for the divorce or support him or herself during the divorce proceedings. He or she may want to secure a line of credit to help as well. If he or she opens a credit card, it should be in only his or her name. Further, a spouse contemplating a divorce should prepare so his or her husband or wife cannot cut them off from their joint finances or make it so that the spouse seeking a divorce cannot support themselves during the divorce. If one spouse controls all the household finances, or even all the money is in a shared account, the other spouse might find him or herself without access to financial support. In a high net worth divorce, one spouse may also attempt to hide assets to prevent the other spouse from getting a share during the divorce. There are consequences for anyone caught hiding assets during divorce proceedings. However, some people are willing to take the risk to keep their assets to themselves. A skilled attorney can help uncover these potential risks and plan to avoid them. 

Anyone contemplating divorce can put themselves in a better position by taking the time to plan. He or she can consider all financial, emotional, and scheduling aspects of the divorce before proceeding. Filing for divorce first may be the right strategic move, depending on the individual’s situation. However, he or she can determine when to file for divorce after consulting with an attorney. 

Uncontested divorce lawyer Denise Erlich is passionate about helping divorcing couples in the greater Chicagoland area transition to their new life as seamlessly as possible. Ms. Erlich patiently guides her clients through every step of the divorce process and provides clients with candid advice about their case and legal options, so they can make informed decisions about their future.