When couples decide they will be proceeding with divorce in Illinois, they often want to know what their options are in terms of how to go about it. As with any major life decision, it is important to consider all your options when planning to file for divorce.
Just file the divorce, there is little to be gained from a legal separation.
The short answer is that if you’re sure you want to go ahead, there’s really only one choice: file a Petition for Dissolution of Marriage. It is true that there is an option for couples to file for legal separation. Couples sometimes feel that it is a prudent move that “leaves their options open.” However, it’s rare to encounter a scenario in which this option makes sense for either party.
The meaningful options that we most frequently discuss with clients have to do with how to keep the costs and fees associated with divorce proceedings as low as possible. Generally, this depends primarily on two things. First, how contested is the divorce going to be? Happy divorces cost less. And second, how complex is the financial situation of the two parties? Simple divorces, where there are fewer financial documents that need to be reviewed, also cost less.
Being the “petitioner” gives you some control.
One option you have is to be the one who files for divorce. The person who files the Petition for Dissolution of Marriage becomes the “petitioner.” There are several important advantages to being the petitioner. First and most important, it gives you the legal right to withdraw your petition at any point and “without prejudice,” which means that you would be allowed to re-file a petition for divorce again later if you chose to do so.
While to many people this might not matter, in rare cases the petitioner decides to withdraw their petition just before the trial starts, resulting in the trial being canceled. Even if this happens after, for example, 18 months of legal battles and tens of thousands of dollars in legal fees, there are no penalties to the petitioner for such a withdrawal.
By contrast, the other person in the divorce proceeding – who is called the “respondent” – typically files a counter-petition. A counter-petition is considered a best practice, because it protects their right to the divorce moving forward. This means that if the initial petition is withdrawn, you as the respondent have the counter-petition pending and can move forward as the new petitioner if you choose. The counter-petition will also safeguard any legal fees that the respondent has invested along the way, because they won’t have to start the process from scratch.
As a petitioner, you will not have to spend money in fees to file a response to your spouse’s counter-petition. Additionally, if the respondent does not file a response to your petition, you can file a Default. In such a case, the terms of your petition are granted without the other party presenting their case.
Being the “respondent” is the less expensive position.
As a respondent, you do not have to pay for the other party to be served with the papers (the petitioner does pay for papers to be served). Also, the filing fee for a counter-petition tends to be less expensive.
Being the petitioner is a bit more costly, but it means that you get more control over the proceedings.
The only time we may advise against moving forward as the petitioner is if you and the respondent live in different counties. This is because the “venue” or court that will handle the divorce will be in the county where the respondent lives.
In a nutshell, as a petitioner, your advantage would be in speed and having more control. As a respondent, your advantage would be lower costs and, in some cases, control over the venue.
Child custody, alimony and other issues can be filed later.
You may be hesitating to file the petition thinking that there are other issues that need to be addressed, such as child support, custody, and alimony. Such matters can be included in the initial petition, but you can also file them subsequently as separate motions.
The breakup of a marriage creates a swirl of other changes and uncertainties. Besides wanting to understand how to save on costs and fees, you may also be thinking about how to find a place to stay, how to make sure child care is paid for while the case is pending, and issues regarding health insurance coverage. These matters are going to vary on a case-by-case basis with each divorce situation. Such issues, as well as the painful nature of divorce, are why we recommend that you obtain counseling in addition to legal advice during this time.
Similarly, you may want to explore the variety of options regarding how to distribute marital assets and debts, as well as making provisions such as how you’re going to pay for college for your kids. These are all part of the larger picture that the legal advisor and counselor can help you with.
To sum up, as far as starting divorce proceedings, we recommend filing the Petition for the Dissolution of Marriage as quickly as possible and then dealing with the other issues from there. It’s more important to get it started than to figure out every little detail of the divorce and get everything included at the outset. There is usually no reason to wait.