If the idea of divorcing your spouse has moved from “maybe” to “it’s time,” you might wonder if it’s better to file first or wait for your spouse to file instead. There are pros and cons to each. Every divorce is unique, so whether the pros outweigh the cons depends on your situation. Read on to learn more.

The Advantages of Being the First to File for Divorce

There are several advantages to being the first to file.

  • First choice for lawyers. For ethical reasons, once you’ve spoken with an attorney about the case, they can’t work for or even provide consultation to your spouse. That means you have a full range of choices the spouse wouldn’t have.
  • Better opportunity for a complete inventory of assets. Before filing, you’ll want to do a complete inventory of any assets that could be considered marital property (more on that below). Being the first to file means you can gather that information before your spouse has a chance to try and hide assets. Even if you think the spouse wouldn’t do that, it’s good to know what the assets are so you can determine what you want to get during the divorce.
  • First, to present evidence and testimony in a trial. If your divorce case ends up in court, you’ll be the first to present evidence and testimony. You and your lawyer will determine which witnesses to call and the order to present the evidence. Your spouse will be in the position of reacting, not being proactive. You’ll also be able to rebut any evidence or testimony your spouse provides. While legally, the judge must hear both sides equally, being first can provide a subliminal benefit.
  • Emotional benefits. Filing first might provide a sense of control over the divorce, and it may also bring feelings of relief that you’ve taken action on this critical life step.

The Disadvantages of Being the First to File for Divorce

  • Higher fees. In Illinois, the spouse who files first pays the petition to file for the dissolution of marriage fees, which are slightly higher (about $140 or so) than the respondent’s fees. If the divorce is disputed, your attorney fees may be higher as the divorce takes longer than an uncontested divorce.
  • Spouse knows what to respond to. Being first allows you to announce how you want the marital property divided up, but it gives your spouse an edge in learning your intentions and allows them time to determine how to respond, while you might not have as much time to reply to their response.
  • The other spouse is antagonized. Filing first, especially if you haven’t notified the spouse, can come across as an offensive move that could antagonize them and start the divorce process in anger.

Is Illinois a Community Property State?

No, Illinois is not a community property state. The marital assets will not automatically be divided 50-50.

Instead, the judge will determine how the assets are divided between the spouses based on each spouse’s financial situation and contribution to the marriage. They’ll also consider situations that affected the overall marriage, such as if one spouse left their career to stay home and raise children.

What Is Considered Marital Property in Illinois?

Basically, Illinois courts consider anything that was acquired during the marriage to be marital property. That could be actual property such as a home or a car or financial assets such as bank and retirement accounts if funds were added to those accounts during the marriage. If they were in one name and nothing was added during the marriage, they could be considered non-marital property. An exception to the latter is that if a retirement account created before the marriage in one spouse’s name earned interest while the spouse didn’t add funds during the marriage, the interest earnings might be considered non-marital property.

Non-marital property in Illinois includes:

  • Anything acquired before the marriage and not used jointly during the marriage.
  • Gifts or inheritances that are held separate from the marriage.
  • Property specified as non-marital in a prenuptial agreement or similar legal document.
  • Any increase in the value of a non-marital asset (for example, if one spouse had a piece of real estate in their name before the marriage, and the property wasn’t used during the marriage but increased in value during that time, the increased value would be a non-marital property).
  • A piece of non-marital property that was exchanged for another piece of property.

How Does Non-Marital Property Become Marital Property?

A non-marital asset becomes a marital asset once it’s commingled. That means the asset is shared or used by both spouses at some time during the marriage. For example, if one spouse receives a monetary inheritance and puts it into a joint bank account, it becomes marital property.

Determining what’s marital versus non-marital property can be legally complex. The laws have some nuances that leave room for interpretation. Working with an experienced Illinois divorce attorney can help you understand what grounds you have for claiming non-marital property.

What Should I Do if I’m Interested in Filing for Divorce Before My Spouse Does?

Call the Law Offices of Robert Buchanan at 312-757-4833 for a no-obligation free consultation. Divorce is one of life’s most stressful situations. Depending on the circumstances, it can also be complicated, especially if there are significant properties and assets to be divided. Our team of experienced, knowledgeable divorce attorneys will work with you to achieve the best outcomes possible.