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 actually go forward may need to be made by you. While there are some considerations, there is not significant substantive advantage under Illinois law of filing in a certain order. But from the perspective of the payor of maintenance, is critical to consult with a family lawyer because the presumed length of alimony (maintenance) is in part 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, there is an answer that in a sense against public policy. That means that the best time to start a divorce is before the 20-year anniversary because under current law indefinite (read permanent maintenance) is presumed.
And if one’s spouse is potentially dissipating marital funds, it is important to file the divorce within a certain time frame. This is because there is a time period when potential claims for dissipation become stale.
In a sense, a truly bad marriage is like a bad investment, and ordinarily you should cut your losses short as soon as possible. And from the perspective of the payor of maintenance, there are certain time frames where it would be important to file for divorce if you believe that the marriage may be undergoing an irretrievable breakdown. If the marriage is in serious jeopardy it is 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. First there is marriage counseling. If you want to preserve your marriage your lawyer should refer you to a good marriage counselor, but lawyers are not marriage counselors. What your lawyer can do for you is to buy you time. Sometimes the decision to divorce is a rash one and time will cure the problem.
Do not, however, buy into a separation. Despite the fact that many marriage counselors recommend a trial separation when the marriage is in trouble, I recommend against a separation if you want to keep the marriage together. Separation does not make the heart grow fonder. A separation is usually only a way of setting the framework for a divorce.
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, then having the marriage of more than 10 years to a divorce can make a difference for social security spousal benefits;
- Under current law in Illinois, if the one spouse anticipates not having a job with health care benefits for some time after the divorce, being divorced after age 55 can make a difference for health care continuation benefits;
- As indicated above, if one’s spouse has been dissipating property, the divorce filing date can make a critical difference;
- In cases where there is a business owning spouse or a spouse who has significant control over his or her income, the usual advice is that if the marriage is significant on the rocks (such as there already being a separation), it is often best not to delay a divorce filing despite the potential occurrence of an anniversary date. But recall, there is no one-size-fits-all rule and advice from an experienced family lawyer is essential.
Is there an advantage to be gained by my filing for divorce first?
It depends. Generally what dictates when divorce proceedings should be filed is if a court order is required as, for example, for temporary child support, temporary child custody, or for an injunction to prohibit a party from disposing of assets. But there is an exception from the perspective of the spouse who may have to pay maintenance. In this case, getting a divorce case on file 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.