The Advantages of Filing First

by Wes Cowell; updated 1 June 2016 -- suggest a correction


There ARE advantages to filing first.  Do yourself (and your lawyer) a favor:  once you see a divorce on the horizon, don't hesitate — talk with a lawyer and protect yourself.  Need advice?  Callleave your info, or schedule a consult.


Divorce is not a pleasant undertaking. It is understandable that many people would rather wait to let their spouse take the first step. They think that by waiting and not filing first, they will be immunized from the difficulties of the divorce process itself. Both parties face difficult times.  Filing first can make things easier to process internally.


Most people – even most lawyers – believe that there is no real advantage to filing first.  They’re wrong. Here’s why:


  • Filing a divorce case establishes a clear mark in time that the court may use as the point of “irretrievable breakdown.” The date will be critical for a few reasons:


  • Dissipation Claims:  if you fear that your spouse may try to hide or transfer assets to defeat your claims or deny you your fair share. It also could save you from debt that your spouse may recklessly run up. The earlier the date, the better off you will be. To delay filing will only give your spouse more time to hide and transfer away assets, or use debt as a weapon, before he or she files.


  • Maintenance Awards: In most cases, a maintenance award is determined by a formula in the law.  Monthy maintenance payments may be larger or smaller, and for a longer or shorter duration, depending on the day you file for divorce.  750 ILCS 5/504(b)(1)(B), now states that “The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced…” Filing sooner may shorten the duration of a maintenance award. Delaying filing -- by even a few days -- may extend the duration of a maintenance award by YEARS.


  • Property Valuations:  Illinois law used to require the court to value property as of the date of the trail.  That law changed, however, in January, 2106.  The new 750 ILCS 5/503(f) states, “the court, in determining the value of the marital and non-marital property for purposes of dividing the property, has the discretion to use the date of the trial or such other date . . . ordered by the court within its discretion, for purposes of determining the value of assets or property.” (750 ILCS 5/503(f), emphasis added).  Other courts often use the date of the filing of the petition as the date by which to value property and your judge may look to those other courts for guidance in deciding the date by which to value certain property.


  • First impressions count. By filing first you demonstrate to your spouse you have the emotional and psychological strength and determination to deal with the situation. Rather than letting a divorce happen to you, you show that you and your attorney are a prepared, resourceful team ready to handle any contingency. This impression will help deter your spouse from reckless strategies and spiteful acts, saving you time, money, and frustration in court.


  • When you file first, you put yourself in the driver’s seat. Like most “Respondents,” your spouse probably won’t file a counter-suit for divorce. By filing first, you give yourself an emergency exit – a parachute – if things go wrong. If the case ever takes a turn for the worse and your bargaining power is undermined or your trial preparation is lacking, because you filed first you may dismiss the case. You’ll have to start over; but a fresh start is far better than a disastrous ending. Consider the alternative: let your spouse file first and, if your case takes a turn for the worse, your only options will be to beg your spouse for another chance or accept a defeat that will be painful in more ways than one.


  • In a contested case, the Petitioner goes first. If your case goes to trial, as the “Petitioner” you and your attorney will present evidence and testimony first.  Your lawyer decides which witnesses to call and in which order, which facts to put on first, and how to structure the presentation of the case to the judge.  Your lawyer gets first dibs at the judge's ear. Only after your lawyer is done explaining everything will your spouse have a chance to try to change the judge’s mind. Your lawyer will make closing arguments first and will also rebut opposing argument. To a lawyer, having the advantage of “going first” at trial is hard to overstate. About half of all cases that go trial settle in the middle of the trial. When you go first, your spouse sees the strength of your case. As the case goes on, and settlement discussion happen during short breaks, your bargaining power increases. By filing first, you avoid being in the position of hearing the case being built against you and simultaneously having to make larger and larger settlement offers.


  • Once you and your lawyer win the race to the courthouse by filing first, your case won’t immediately spin out of control into an ugly, messy, conflict. When you are ready, your lawyer will mail a copy of the papers to your spouse with a thoughtful letter establishing a civil and businesslike atmosphere for settlement.


Done properly, filing first will create significant advantages, avoid common pitfalls, and create a climate in which you have clear control of settlement terms.



Need more help? Ready to take the next step? Our attoneys are here for you.





Speak directly with an experienced divorce and family law attorney
at no charge.



  • Facebook Social Icon
  • LinkedIn Social Icon


© 2019 Wes Cowell. This site is maintained and operated by Wes Cowell and Cowell Family Law, P.C.