Timing and Divorce In Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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When Should I File For Divorce In Illinois?

Timing and Divorce In Illinois

Thinking about divorce is common.  Every married person has thought about divorce. Most married people have researched divorce (and stumbled on sites like this). But when it comes to filing for divorce, people are hesitant.  Even if a person is ready to file for divorce, when is the best time to file for divorce?  In Illinois, there are a few timing considerations when deciding when to file for a divorce.

How Long Do I Have To Wait To File For Divorce In Illinois?

Contrary to popular belief, you don’t need to wait at all to file for divorce in Illinois. There is nothing holding you back from filing for divorce. The only question is “should you file for divorce in Illinois now or later?”

While the Illinois statute requires one of the spouses in a divorce to be a resident of Illinois for 90 days before the divorce petition is filed.

“The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action” 750 ILCS 401(a)

The Illinois statute also says (and this is hard to follow)

“…or the making of the finding:

    Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.”  750 ILCS 401(a)

So, you can wait 90 days after one spouse has started to live in Illinois OR, at the end of the divorce, one of the spouses has been a resident of Illinois 90 days.

The statute is not easy to read. I have practiced divorce law for 15 years in Illinois and I have never seen a divorce case dismissed for filing too early.

Does It Matter Who Files First In An Illinois Divorce?

There is no grand strategic advantage to filing for divorce before the other person files. The person who files first is labelled “the Petitioner” and the other party, whether they file or not, is labelled “The Respondent.” 

These sound like fancy titles but they just replaced the old civil court titles all the other branches of the courts used. “Plaintiff” and “Defendant” which the legislature deemed over oppositional titles in the already emotionally fraught domestic relations courts.

The person who files first in Illinois usually gets to pick the county the divorce proceeding will be held in.

“Venue. The proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)

So, the Plaintiff/Petitioner can file for divorce in either the county they live in or the county the Defendant/Respondent lives in.  Obviously, it is more convenient to file in your own county but in today’s era of Zoom hearings and trials, location is becoming irrelevant. 

If the children or the bulk of the marital assets are in one county, the case can be moved to that county within 90 days be either party through a Motion For Forum Non Conveniens.

The other advantage to filing for divorce first in Illinois is if the other party doesn’t file anything in response to the initial petition.  In that case, the court will find the other party in default and award you a divorce on any terms you’d like. The Petitioner still must prove the facts underlying the allegations in the Petition For Dissolution of Marriage.  But, it’s quite easy to prove something even remotely reasonable if there’s no one on the other side contesting your allegations. 

A default divorce can result in binding decisions regarding child support, maintenance (formerly known as alimony) , division of assets and custody issues.  Only some of these issues are permanently binding if the other party was not served with the Petition For Dissolution of Marriage

There may appear to be a cost differential when determining who files for divorce first in Illinois. Being the first to file for divorce in Illinois costs a little more in filing fees (In Cook County, the filing fee for a Petition for Dissolution of Marriage costs $ 388 and the Answer costs $ 251. The responding spouse will probably file their own Counter-Petition For Dissolution Of Marriage and have to pay the exact same petition fee and appearance fee.  If they file a Counter-Petition, you are not required to file an Appearance because the Counter-Petition will be filed under the same case number.  So, filing second may be more expensive (at least for fees).

How Does The Time Of Filing Affect Parenting Time and Other Child Custody Issues In Illinois?

All parenting time and custody matters are determined by the court determining “the best interest of the child.”

The time of filing is usually irrelevant when considering the best interests of the child.  But, if either parent is particularly stable or instable at the time of filing, that will be a factor the court shall consider that stability or instability in granting temporary orders. 

A common temporary motion is a Motion To Preserve The Status Quo immediately followed after the filing of the Petition For Dissolution Of Marriage. Without knowing much about the family in question, Illinois judges are inclined to preserve the current parenting time and custody schedules until further investigation.

Temporary orders have a strong habit of turning into permanent orders in Illinois divorce courts. So, if you want your current parenting schedule to be the final court-ordered parenting plan, file for divorce before something changes.

How Does The Time Of Filing Divorce Affect Child Support In Illinois?

In Illinois, you can’t ask the court to award you anything from your spouse for anything if you haven’t file for divorce and asked for that specific thing in your pleading.

In Illinois, if you’re married, you are unlikely to be awarded child support from your spouse from the period of time before the date of the filing.  The presumption is that before filing married people lived together or had some arrangement as parents that provided for the child.

The unmarried, however, can ask for back child support from before the filing date as that presumption doesn’t exist.  For unmarried parents, the court can look to “The father’s prior willingness or refusal to help raise or support the child” 750 ILCS 42/86(e)(3)

How Does The Time Of Filing A Divorce In Illinois Affect Affect Maintenance?

The amount of maintenance (formerly known as alimony) in Illinois is determined by the respective parties’ incomes at the time of the divorce. If either spouse is having a particularly good or bad financial year during or just before the divorce is finalized, the maintenance will be set to reflect the income of that year.

Either spouse may always return to court in the future to modify maintenance should their financial fortunes change.

In Illinois, the duration of the maintenance is determined precisely by the filing date of the divorce, however.

Maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B)

So, waiting to file for divorce or just after an anniversary may add or reduce years of maintenance owed in Illinois.

How Does The Time Of Filing A Divorce Affect The Distribution Of Assets In An Illinois Divorce?

The time of filing doesn’t impact the nature or character of marital assets. Marital assets and/or marital property are those assets which are divisible by the court.   

“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)

So, assets which either party acquires after the filing of the divorce but before the entry of the Judgment for Dissolution of Marriage shall be considered marital and, thus, divisible.

The even that ends marital property and its division is the final hearing and entry of the Judgment of Dissolution of Marriage.  That even cannot occur until a Petition For Dissolution Of Marriage is filed.  So, the sooner you file, the sooner you get divorces, the sooner stop dividing your earned income and assets.

After you’ve filed for dissolution of marriage, there are various techniques and strategies you can employ to either delay or speed up your divorce depending on which option is more beneficial to you.

Dissipation Of Assets And The Time Of Filing Divorce In Illinois

Dissipation of assets is a claim either party to a divorce can make that the other party spent marital assets for a non-marital purpose.  Once proven, the dissipating spouse must refund half of the dissipated assets to other spouse as though those assets were never spent at all.

“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage;” 750 ILCS 503(d)(2)(iv)

In Illinois, “Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.

Adulterous affairs, gambling, and drug use expenses cannot be considered as a dissipation of assets in an Illinois divorce cases for any period 5 years prior to the filing of the Petition For Dissolution Of Marriage.

If you’re considering filing for divorce in Illinois and would like to discuss the timing considerations, please contact my Chicago, Illinois family law firm to discuss this matter with an experienced Chicago divorce lawyer.