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, starting January 1, 2016, it is critical to consult with a family lawyer because the amount and length of alimony 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?
Never, in most marriages. In the short run, since the assets you have will be divided, each will have less. The income of the main breadwinner will be diminished if there is child support and/or if there is maintenance (alimony). The money received as child support is seldom enough to support the children. A study has shown that in the long run the financial status of the woman, if she is custodian of children, diminishes.
On the other hand, 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.
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. A good stall is to fight the grounds for divorce, but at the end of two years of living apart, a “no-fault” divorce may be granted.
Is there an advantage to be gained by my filing for divorce first?
No, not usually. 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 in this regard 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 and one should consult a lawyer to discuss pros and cons.
I just discovered my spouse is involved in an affair. My spouse feels very guilty about the affair. Should I try for a divorce settlement immediately?
Yes, if you want to take advantage of the guilt. Guilt usually leads to a more generous settlement than you would have otherwise. But the guilt dissipates quickly, so you must act quickly. On the other hand, by acting quickly you will be divorced quickly. You should carefully consider whether the affair truly means the end of your marriage. Marriages can and often do survive adultery.