Does it Matter Who Files for Divorce First in Illinois?

 Posted on October 21, 2025 in Divorce

Divorce is an emotionally challenging process, and it is crucial to understand the legal aspects involved to navigate it effectively. One commonly asked question is "Should I file for divorce first?" Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101), the judge’s job is to reach a fair result based on facts, rather than on which spouse filed first.

That said, filing first can still affect some parts of the process. It can affect where the case starts, how the early motions are scheduled, and who speaks first at trial. This blog will explore the implications of being the first to file for divorce in Illinois, shedding light on the legal considerations that may arise during this crucial decision. Having an experienced St. Charles, IL family law attorney by your side can help you make the best decisions for your divorce and your future.

The Pros and Cons of Filing for Divorce First

Illinois is a no-fault divorce state. This means you do not need to prove that either spouse did something wrong to end the marriage. You only need to show that there are irreconcilable differences — issues that cannot be resolved. Because of this, filing first does not give either spouse a legal advantage. Judges make decisions about property, child support, parenting time, and spousal maintenance based on state law and the facts of the case, not on who filed first.

That said, the spouse who files first (called the petitioner) can sometimes benefit in a few ways. Filing first can give you more control early in the process. For example, if you and your spouse live in different counties, the divorce will usually take place where you file. You can also decide when to start the case, what to include in the initial petition, and how to outline the issues that matter most to you.

Other practical advantages include:

• Requesting temporary relief early: The petitioner can ask the court for temporary orders related to child support, parenting time, maintenance, or use of the marital home or vehicles.

• Better preparation: Filing first gives you time to organize your financial paperwork, disclosures, and appraisals before your spouse responds.

• Safety planning: If domestic violence is an issue, filing first allows you to coordinate the divorce with an order of protection for added security.

Filing first also means you present your side of the case first at trial, but this does not guarantee a win. The judge still reviews both sides before making any decisions.

There are also some drawbacks. Filing first means paying the court filing fees and service costs. It also alerts your spouse that the process has begun, which can make them more defensive and less willing to settle. In some cases, starting the divorce aggressively can make it harder to work toward an amicable resolution.

Understanding No-Fault Divorce in Illinois 

Illinois law allows you to get a divorce without blaming either spouse. You only need to show that your marriage has irreconcilable differences. If you and your spouse agree that your marriage is over, you can move forward after living apart for at least six months. If one spouse disagrees, you can still get divorced after proving you have lived separately for six months or longer, at which point the court will assume irreconcilable differences exist. Old fault-based reasons like adultery, abuse, or abandonment no longer apply in Illinois. This change helps simplify the process and avoid unnecessary conflict.

How Filing First Can Affect Money and Property Decisions in a Divorce

Filing first does not change how property or finances are ultimately decided, but it can affect how quickly certain financial protections are put in place. Illinois uses equitable distribution, meaning property is divided fairly, not necessarily equally. The court looks at many factors, such as each spouse’s income, needs, and contributions to the marriage.

However, filing first gives you a chance to act quickly if money or property could disappear. If you suspect your spouse might spend or hide marital assets, your attorney can file a motion early to freeze accounts or prevent property from being sold. Filing first also gives you more control over the timeline for things like real estate appraisals, business valuations, retirement account reviews, and forensic accounting. You will have more time to collect financial documents and understand what the marital estate looks like before negotiations begin.

Does Filing First Affect Child Custody? 

Filing first does not give you an advantage in child custody decisions. Judges focus on the best interests of the child, not who filed for divorce first. The court reviews evidence about each parent’s involvement, parenting ability, and home environment to make fair decisions about parental responsibilities and parenting time. However, filing first allows you to propose the initial parenting plan.

While the judge makes the final decision, presenting a well-prepared and reasonable plan can sometimes influence how the final order looks. If you believe your spouse may try to move out of state or take the children, filing first lets your lawyer request early orders to prevent relocation and ensure both parents are informed about travel and schooling decisions.

Does Filing First Give You Any Advantage?

Filing first can help you stay organized and prepared, but it will not change how the court decides the outcome. The same laws apply to both spouses. Judges base their rulings on fairness and the child’s best interests, not on who filed first.

Here is what filing first can and cannot do:

Filing first can:

• Help you plan ahead and gather financial documents

• Allow you to request temporary support or custody orders sooner

• Give you the opportunity to ask for court protections if safety is a concern

Filing first cannot:

• Guarantee you more property or financial support

• Influence how a judge decides custody or parenting time

• Automatically give you an advantage during settlement negotiations

Filing first is mainly about preparation and timing, not outcome. Whether you are the petitioner or the respondent, a knowledgeable Illinois divorce lawyer can help you navigate the process and protect your rights.

Contact a Kane County, Illinois Family Law Attorney

Divorce is undoubtedly a challenging journey, both emotionally and legally. Having a highly skilled St. Charles, IL divorce lawyer from The Law Office of Matthew M. Williams, P.C. on your side is ideal for helping you fine-tune your case’s details and ensure you are on the right path. Attorney Williams has experience with troubled youth and focuses his divorce practice on mediation and collaborative divorce to reduce costs and make the process easier and more amicable.  Call 630-409-8184 to schedule a free initial consultation so we can discuss your options and help you determine what your next steps should be.