Divorce is sometimes a surprise. Your spouse can serve you with divorce papers and you must then follow your spouse through the divorce process. It can feel like your soon-to-be-ex is in charge of the divorce because they were the one to file for divorce. But, even if your husband or wife has filed for divorce…you can still file for divorce against them. A second filing for divorce in Illinois is called a Counter-Petition For Dissolution Of Marriage.
Does It Matter Who Files First In An Illinois Divorce?
No. It never really matters. The petitioner has no advantage over the respondent or vice-versa in an Illinois divorce case.
The only thing that matters is the timing of the filing of the divorce. So, the person who files for divorce determines the timing of filing.
For child support, if you were married it is presumed that the other parent was supporting the children before the filing for divorce and the request for child support contained therein. So, you can’t ask for back child support from before the filing date if you were married.
There is an exception to this rule: if your spouse has disappeared and can’t be served. In that case, you can ask for back child support otherwise it would reward parents who dodge service.
“In a proceeding for child support following dissolution of the marriage or civil union by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the obligor’s net income for the prior period was the same as his or her net income at the time the order for current support is entered.” 750 ILCS 5/505(a)(4.5)
Alimony looks specifically to when the filing date was to determine the length of maintenance (formerly known as alimony). Maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by [an escalating time scale that exponentially increases the length of maintenance]” 750 ILCS 5/504(b-1)(1)(B)
Why File For A Counter-Petition For Dissolution Of Marriage In Illinois?
There is one big reason to file a Counter-Petition For Dissolution of Marriage In Illinois: to avoid withdrawal of the original petition.
The original petitioning spouse can withdraw their divorce petition at any time….and the divorce simply disappears.
This is actually a fairly common and practical strategy.
If your divorce is not going as expected. Perhaps the judge has ruled against you in a temporary hearing or you just feel that the judge is biased. Perhaps you just want to exercise a brinksmanship strategy on the eve of trial in order to force a settlement. You can simply withdraw your Petition For Dissolution Of Marriage without any real penalty.
In Cook County, Illinois, there are 30+ divorce judges so you have a 97% chance of getting a brand new judge and a brand new divorce process.
So, if you want to get divorced no matter what, you’d better file a Counter-Petititon For Dissolution Of Marriage.
“A [voluntary] dismissal does not dismiss a pending counterclaim” 735 ILCS 5/2-1009
Without a Counter-Petition For Dissolution of Marriage on file, you’ll have to file a brand new Petition For Dissolution Of Marriage, be assigned a new divorce judge, serve the opposing party and go through the entire divorce process again.
When a Counter-Petition is on file, “Service of process on parties already before the court is not necessary.” 735 ILCS 5/2-608(b)
95% of divorce petitioners are so committed to finalizing their divorce that they would never engage in the tactics described above. This can make filing a Counter-Petition For Divorce a duplicative and wasteful process…but you never know.
What’s The Downside To Filing A Counter-Petition For Dissolution of Marriage?
A counter-petition for dissolution of marriage costs an extra filing fee. In Cook County, that fee is $ 388 as of the date of this publication.
Additionally, your divorce attorney (more likely the attorney’s staff) will have to prepare and bill you for preparing this additional document (which will likely just be a mirror of your spouse’s Petition For Dissolution Of Marriage).
A Counter-Petition For Dissolution may have the slight appearance of aggressiveness if your divorce was otherwise amicable up to that point.
What’s In a Counter-Petition For Dissolution of Marriage?
“[T[he court…may…grant leave to the respondent to file a petition in the nature of a counter petition.” 750 ILCS 5/411
A Counter-Petition For Dissolution Of Marriage is exactly the same as a Petition For Dissolution Of Marriage.
I have a 2500 word article about everything you should or should not put in a Petition For Dissolution of Marriage In Illinois. Read that article here and follow the exact same steps.
If you want to bring different allegations to the court’s attention, a Counter-Petition For Dissolution Of Marriage is the best start.
If you want different relief (a final ruling from the court) from your spouse is requesting, your Counter-Petition For Dissolution Of Marriage can outline the relief you’re requesting.
But, if you forget something or your situation changes, Illinois family law is not so rigid and formulaic that can never ask for it again (or even need to amend your pleadings).
An Illinois divorce must resolve all divorce-related issues, whether you list it or not on your Petition. “[U]ntil all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.” In re Marriage of Leopando, 449 NE 2d 137 – Ill: Supreme Court 1983
Why Can’t You Just List Your Counterclaims In Your Response To The Petition For Dissolution Of Marriage.
Other civil actions in Illinois do not require a “Counter-Petition” to state counterclaims. They merely list their counter-claims in the response.
“Any claim by one or more defendants against one or more plaintiffs,… may be pleaded as a cross claim in any action, and when so pleaded shall be called a counterclaim.
(b) The counterclaim shall be a part of the answer, and shall be designated as a counterclaim. Service of process on parties already before the court is not necessary.
(c) Every counterclaim shall be pleaded in the same manner and with the same particularity as a complaint, and shall be complete in itself, but allegations set forth in other parts of the answer may be incorporated by specific reference instead of being repeated.” 735 ILCS 5/2-608
“Actions for dissolution of marriage or legal separation shall be commenced as in other civil cases” 750 ILCS 5/411(a)
So, why can’t you just put your counter-claim, that you also want a divorce, in your Response To Petition For Dissolution Of Marriage?
I don’t know.
I suspect it has to do with the fact that in Cook County, any counterclaim costs $ 388 to file. So, if you’re going to pay the price of a Petition, you might as well call it a Petition.
What Happens After The Petitioner/Counter-Respondent is given notice of the Counter Petition.
The Petitioner now has the new, joint title of Counter-Respondent and must file an answer to the Counter-Petition just as the Respondent filed their answer to the Petition For Dissolution of Marriage.
“Answers to and motions directed against counterclaims shall be filed by parties already before the court within 21 days after the last day allowed for the filing of the counterclaim.” Illinois Supreme Court Rule 182(b)
In theory, a failure to file a response could result in a default judgment against the Petitioner/Counter Respondent.
But, a judge would probably treat the failure to respond to a Counter-Petition For Dissolution Of Marriage as they would to a Respondent who filed their appearance but no response. Give the Counter-Respondent more time and a warning that they will be defaulted if they do not file a response by a certain date.
If your spouse has filed a Petition For Dissolution Of Marriage against you and you want to know all of your options, including a Counter-Petition, contact my family law firm in Chicago, Illinois to speak with an experienced Chicago divorce lawyer.
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