When a couple decides to get a divorce, they sometimes try to race each other to the courthouse to be the first one to file the petition for divorce. Naturally, one of the first questions people ask when they call our office is, “Is it to my benefit to file first?” Generally, it really doesn’t matter who files, and this is particularly true when an out of court process, such as Collaborative Divorce, is pursued.
Filing in the Collaborative Divorce Process
In a Collaborative Divorce, where the parties work together with the help of trained professionals to resolve their issues and create a settlement agreement, the spouses have the benefit of carefully analyzing their situation prior to filing. They mutually choose a date upon which a petition is filed. This helps them avoid filing the petition prematurely and getting caught in having to file continuance after continuance and not getting things done. Instead, they can work through the issues outside of court and not file the petition until they are both ready. There are certain circumstances, where there is a legal issue pertaining to a specific right or responsibility, in which filing at a particular time is important, however this is something that is discussed with the attorney in advance.
When the Date of the Filing of the Petition May be Significant
- When spouses live in the same county. For spouses who live in the same county, it will generally make no difference to the outcome who files first. The one who files first, known as the Petitioner, has the advantage of setting dates and presenting their case first at court hearings, but even those dates can be changed upon request by the non-filing spouse, known as the Respondent.
- When spouses live in separate counties or states. If the Petitioner meets residency requirements, the divorce litigation is generally held in the county and state where the petition is filed. This can be significant for a spouse who wants Illinois equitable division of property to apply instead of, for example, the community property law of another state.
- Spousal maintenance awards. The petition filing date may make a difference in the amount of time one spouse receives support from the other. Illinois law states that the length of time for which one spouse may be awarded maintenance depends on the length of the marriage, calculated from the date of the marriage to “the time the action was commenced.”
- Property valuation. Illinois law allows the court to determine a date for valuing the marital property for purposes of dividing it. The statue allows that date to be any date agreed upon by the parties, or the trial date, or any other date ordered by the court, within its discretion.
For more information on how a Collaborative Divorce can help you determine when to file your petition and settle your issues first without court involvement, contact us at Bruckner Hernandez Legal Solutions, LLC.