In general, not much. The biggest tactical advantage is that the party who filed first will also get to present evidence first at a trial. Because the great majority of divorce cases settle prior to trial, this will not usually be a factor. A party who files first may also find it easier to dismiss the case voluntarily if that becomes desirable for any reason.
The only likely financial impact of filing first is that the filing fees will be slightly higher for the person filing first.
Although Illinois still allows divorces based on fault grounds, including adultery and bigamy, most people choose no-fault divorce. Fault grounds require proof, which often means a more expensive and acrimonious divorce right from the outset. A no-fault divorce requires only a showing of irreconcilable differences, meaning that the marriage has broken down and cannot be saved. Spouses who agree that the marriage cannot be saved must be separated for six months before the divorce becomes final. If one spouse doesn’t agree that the marriage is over, the other can still proceed with the divorce, but the court will not grant it until the parties have been separated for two years. Learn more about fault and no-fault divorce.
Parties who don’t want to divorce but do want to live apart and be financially independent can file for legal separation. Spouses with strong religious objections to divorce sometimes seek this option. Some people want to maintain insurance coverage, and others simply don’t wish to be divorced. Legal separation is a way to remain married while protecting assets, as debts incurred by one spouse after a legal separation belong to that spouse alone, and the other spouse can’t be made legally responsible for them.
Although spouses who have filed for divorce and are living separately may refer to themselves as legally separated, this is not accurate. A legal separation requires a court proceeding just like a divorce, and establishes a complete separation of financial responsibility just like a final decree of divorce does. The only difference is that the marital relationship is not legally over.
There can be wide variations in the length of time it takes to complete a case. Simple uncontested cases may be resolved within a few months, while cases where couples have complicated financial situations and many disagreements may take well over a year. Many states have waiting periods, from six weeks to six months, before the court may enter a final judgment.
The cost of a divorce can also vary widely. A simple uncontested divorce where the parties represent themselves could cost as little as a few hundred dollars for filing fees. On the opposite end of the spectrum, divorces involving complicated financial situations and hotly contested battles over property division, spousal support or child custody will cost many tens of thousands of dollars.
Parties to a divorce need to understand that attorney’s fees can add up quickly, as can additional costs for things like depositions and expert opinions. While it may not be possible to avoid all of the complexity involved in separating a large marital estate, most couples can reduce costs substantially by working together and keeping the level of animosity as low as possible.
In most cases the attorneys’ fees for both spouses will come out of the couple’s joint finances. If one spouse demonstrates an inability to pay and the other has significant assets available, the court can equalize the parties’ bargaining positions by requiring the spouse with greater means to make a contribution to the other spouse’s attorney’s fees.
An attorney in Illinois cannot represent both spouses in a divorce. Every attorney has a duty to work hard to obtain the best possible outcome for each client. Since a married couple has a limited amount of money and property available to divide, it is not really possible to argue in favor of both spouses receiving the maximum amount. Spouses also frequently have conflicting interests in matters of child custody, and an attorney can only present the situation from one party’s perspective.
Sometimes one spouse will consult an attorney and request preparation of papers for an uncontested divorce. In this case, the other spouse must understand that the attorney preparing the papers represents only the hiring spouse. It is always a good idea for the other spouse to have an attorney review the paperwork before the divorce is finalized.