WHEN IS IT TIME TO FILE FOR DIVORCE
Filing for divorce can be a difficult step to take, but sometimes it is a necessary step, and it is important to understand the advantages of when to file and when not to file for divorce because the timing of filing can have important legal consequences. Parties should first always explore potential reconciliation and not rush into a divorce, which will have long-lasting consequences in regard to their finances and parenting issues. There is normally no advantage to rush to beat the other party to the courthouse and file for divorce before the other party. No legal advantage is given to the party who was the one to start the divorce. The law treats equally the party who filed the divorce (the Petitioner) and the one who was named on the other side in the divorce (the Respondent). The only minor advantage would be that the party who initiates the divorce will be able to choose which county to file in if there is more than one option. Nor will the legal nature of parties’ property change if a divorce is not immediately filed. Marital assets will remain marital assets indefinitely according to the rules of Illinois law absent special circumstances. Another consideration in the timing filing for divorce is health insurance. Once a divorce is completed, if one spouse is providing health insurance to both parties, the health insurance company may refuse to continue to cover the divorced spouse after the divorce is finalized. If that divorced spouse has health issues or there is a reason why that other spouse may not be able to obtain health insurance, that may be a reason to delay in the filing of a divorce or at least delaying finalizing a divorce. There can also sometimes be tax advantages of waiting to file for divorce or waiting to finalize a divorce if it is beneficial to be able to file jointly in a particular year.
You do not need to have everything figured out in regard to parenting issues or financial issues prior to filing for divorce and you can usually work out the finer details during the divorce process. Although a divorce can be started relatively quickly, there is a court process that will require some time to complete. Once a Petition for Dissolution of Marriage is filed, there is usually a significant delay before the initial status hearing set by the circuit clerk. Even when that date arrives you are not going to be divorced on that initial date. It is usually just an initial status hearing to give the Judge a chance to learn about the case and set some initial deadlines. There are normally a series of court dates needed to complete the necessary steps in a divorce case, and as a general rule, the more that the parties fight about things the longer the case will take.
One concern that may be relevant in determining whether to filing a divorce is the financial joinder of the married parties. Until parties are actually divorced, their finances are still joined. That means that technically every paycheck earned by the parties, every bank account, every retirement account contribution, and every debt is a marital asset or debt. This is true even if the parties have separated and no longer are living together and have accounts in their own names. Delays in filing for divorce could thus add to what the other spouse is entitled to get from retirement accounts or bank accounts. Delays in filing can also allow a party to rack up significant debt and that debt will technically be marital debt to be divided during the divorce proceedings. Waiting to file for divorce can also give time to a dishonest spouse to plan for the divorce and engage in unscrupulous conduct to secret funds and mask their true income and assets prior to the start of the divorce. This is a reason sometimes not to simply wait for the other spouse to start the divorce. Delays in filing for divorce can also provide additional time for a Spouse to squander marital assets. The aggrieved spouse may or may not be able to recover for that dissipation and those lost assets during the divorce proceedings if they are not initiated in time.
Filing for divorce is a major step in anyone’s life and should not be decided without due consideration. If you come to the conclusion that divorce is going to be necessary, it is important to plan the timing of filing for divorce to put yourself in the best position to protect the future of yourself and your family going forward.
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