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Illinois Divorce: Does It Make a Difference Who Files First?
In Illinois, divorce cases are filed in the trial-level “Circuit Court” in the particular county where the spouses reside. The spouse who files the petition for divorce is called the “petitioner,” while the spouse responding to this action is called the “respondent.” Spouses are not called the “plaintiff” and “defendant,” because Illinois has a “no-fault” divorce resulting from irreconcilable differences. As such, a mere petition for divorce is sufficient instead of a full-blown lawsuit.
For spouses living in the same Illinois county, the court in that county will take the case. There should be no difference in the outcome depending on who files first. While the petitioner gets the right to state her facts first and make a last rebuttal, most, if not all, judges are able to look at the merits of the case, unprejudiced by the mere order of argument presentation.
However, the petitioner, by initiating the case, sets important deadlines within a certain range. The respondent must present herself on the court-ordered dates. The petition may also set certain temporary court orders for child custody, living arrangements, etc. during the divorce process.
Where parties are living in different Illinois counties, the case is usually held in the petitioner’s county. This could be an advantage to petitioner in travel costs. However, upon respondent’s objection, the judge can transfer venue to respondent’s county if fair and reasonable.
When spouses live in different states, the divorce is usually held in petitioner’s state, if residency requirements are met. To qualify as an Illinois resident, a spouse must reside in Illinois at least 90 days before the final ruling. Once the divorce is filed in Illinois, the petitioner enjoys Illinois divorce laws. This could be an advantage for a spouse that wants a fair distribution of property (Illinois law) as opposed to an equal division of property (other states such as California).
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