Divorce, like life, is a matter of timing. Sometimes, the choice is taken away when your spouse files for divorce. Other times, the decision to go forward needs to be made by you. Generally, there’s no substantive advantage under Illinois law for filing first, except when it comes to the issue of maintenance or there are potentially two places where someone can file (venue). From the perspective of the maintenance payor, it’s critical to understand that the presumed length of alimony (maintenance) is based upon the length of the marriage through to the date of filing of a petition for divorce.
When is a good time to start a divorce?
For better or worse, if one is the potential maintenance payor, one files for divorce well before the 20-year anniversary. At the 20 year-mark, Illinois law presumes indefinite (read permanent) maintenance.
And if one’s spouse is potentially dissipating marital funds, the filing date becomes critical. Illinois law bars dissipation after five years.
In a sense, a truly bad marriage is like a bad investment. If the marriage is in serious jeopardy, it’s critical to consult with an experienced divorce lawyer to understand your rights.
My spouse filed for divorce, but I do not want a divorce. What can I do about it?
Stall. Ask to go to marriage counseling. If you want to preserve your marriage, ask your lawyer for a good marriage counselor. Sometimes the decision to divorce is rash and time and counseling help. Do not, however, buy into a separation. Although marriage counselors often recommend a trial separation when the marriage is in trouble, I recommend against a separation if you want to keep the marriage together. Separation doesn’t make the heart grow fonder. Separation usually sets the stage for a divorce.
I’ve heard that women are usually the ones who file for divorce. Is this right?
Yes. Wives are the ones who most often file for divorce at 66 percent on average. That figure has soared to nearly 75 percent in some years.
What are the most critical time frames that can make a difference?
Five such critical time frames may include:
- From the maintenance payor’s perspective, filing before an anniversary date may be important.
- If one spouse has a significant historical income and the other spouse does not, having a marriage of more than 10 years to a divorce makes a difference for social security spousal benefits;
- Under Illinois law, if one spouse anticipates not having a job with health care benefits for some time after the divorce, being divorced after age 55 allows for health insurance continuation benefits;
- If one’s spouse has been dissipating marital property, the divorce filing date makes a critical difference;
- In cases where there is a business-owning spouse or a spouse who has control over his or her income, the usual advice is that if the marriage is on the rocks (such as there already being a separation), don’t delay a divorce filing despite the potential occurrence of an anniversary date.
What are other reasons timing may be important?
There may be reasons to avoid delaying seeking a divorce. Thus, file a divorce case if one needs temporary child support or maintenance, an order prohibiting a party from disposing of marital assets, etc. Consider another exception to the rule that it does not make a great deal of difference for who files first. If there is a potential maintenance obligation, filing a divorce within certain time frames may be important.
It is critical to consult with an experienced family lawyer to discuss pros and cons if your marriage is in serious jeopardy.
