The Advantages of Filing First

updated 3 March 2019

by Wes Cowell;  

 

There ARE advantages to filing first.  Do yourself (and your lawyer) a favor:  when you see 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 the spouse take the first step.  Most people – even most lawyers – believe that there is no real advantage to filing first.  They’re wrong.  Here’s why:

  • Marking Irretrievable Breakdown:  Filing a divorce case establishes a clear mark in time that the court may use as the point of “irretrievable breakdown.”  The court may use another date -- like the date of a big fight, or a big bank transfer, but when all else fails, the date of filing of the case will clearly establish the point of irretrievable breakdown.  The date of filing can be critical

  • 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.  Monthly maintenance payments may run 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 will extend the duration of a maintenance award.

  • Property Valuations:  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).  In some cases, judges will elect to use the date of the filing of the petition as the date by which to value property.   Filing earlier or later may make a difference in the valuation of the property to be divided.

  • First impressions count.  By filing first you demonstrate to your spouse that you have the emotional strength and psychological determination to control the situation.  Rather than letting a divorce happen to you, you show that you and your attorney are in control and 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.

     

  • Control:  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.

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