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 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, ideally 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. You might consider cutting your losses short. 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. Ask to go to marriage counseling. If you want to preserve your marriage, your lawyer should refer you to a good marriage counselor. Sometimes the decision to divorce is rash and time and counseling will cure the problem.
Do not, however, buy into a separation. Although 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 usually only sets the stage 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 makes a difference for social security spousal benefits;
- Under current law in Illinois, 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 property, the divorce filing date makes 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 on the rocks (such as there already being a separation), it is 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.
Is there an advantage to be gained by my filing for divorce first?
Generally, no. On the other hand, 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.
Also see the Gitlin Law Firm’s Q&A regarding Whether to Start a Divorce
