People are rarely surprised when they find out their spouse wants a divorce. Discussing the prospect of divorce is preferable to bombarding your spouse with filed divorce papers. Still, there are considerations about how much you should tell your spouse about your plans to divorce them and when you should reveal those plans.
Should you tell your spouse that you are going to file for divorce before you have actually filed for divorce in Illinois?
Talking through your potential divorce with your spouse in advance of filing for divorce may save your marriage…but it may ruin your divorce. You can file for divorce without providing notice to your spouse and subsequently provide that notice when reconciliation is no longer a possibility.
Avoiding a contested divorce is a valuable and worthy goal. Of course, negotiating a divorce without filing does not mean that, sooner or later, one spouse will file for divorce if negotiations do not go their way.
Telling your spouse that you plan to file for divorce, gives your spouse the opportunity to file for divorce before you file for divorce.
There is, typically, no advantage to being the first to file in an Illinois divorce case. There is usually no race to the courthouse to see who will be first to file.
There is only one true advantage given to the first person to file for divorce in Illinois. The first person to file for divorce in Illinois gets to pick the initial venue for litigating the divorce.
Venue And Filing For Divorce In Illinois
“Venue. The proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)
If the spouses live in different counties in Illinois, the first spouse to file for divorce will get to choose between the two Illinois counties as the courthouse in which the divorce will proceed.
Each county will apply the same Illinois Marriage And Dissolution Of Marriage Act to the facts in your divorce case. Local rules, however, will be different. A different set of judges will also be available in each particular county.
Even if a spouse picks a county that they believe is favorable to them and their case, the venue can still be moved to the other county if that venue makes more sense for both parties.
Either party can object to the venue selected by the first to file the Illinois divorce by filing a Motion For Forum Non-Conveniens. A motion for forum non-conveniens allows an Illinois divorce court to consider “the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Kuhn v. Nicol, 2020 IL App (5th) 190225 – Ill: Appellate Court, 5th Dist. 2020
You only have so long to object to venue otherwise your divorce will be stuck in that county. “Objection to venue is barred if not made within such time as the defendant’s response is due.” 750 ILCS 5/104(a)
So, filing first does not automatically determine the venue of the divorce case. It is just a hassle to move the case to the other venue.
Filing First For Divorce In Illinois Or Another State
If you and your spouse live in two different states, filing for divorce in Illinois or another state can have a massive impact on the outcome of your divorce.
I practice law in Illinois and Florida. Child support, maintenance (known as “alimony” in Florida), division of assets and parenting time are all handled dramatically differently in each particular state.
Whoever files for divorce first in the state of their choice will be able to proceed under that state’s laws when obtaining their final divorce judgment.
Again, a motion for forum non-conveniens can be filed to remove the case from a state where one spouse is not comfortable proceeding with their divorce.
There are additional defenses to objecting to the jurisdiction of a state. Both spouses have to have “minimum contacts” for a divorce to proceed in a particular state. Otherwise, it is a violation of due process to proceed with a divorce in a state where there are not minimum contacts.
“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the [state], he have certain minimum contacts with [the state]” International Shoe Co. v. Washington, 326 US 310 – Supreme Court 1945
Additionally, if the children of the couple have lived in one state in excess of 6 months that state will be deemed the appropriate venue to resolve the issues regarding the children (and probably all other issues)
“[A] court of this State has jurisdiction to make an initial child-custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding” 750 ILCS 36/201(a)
“”Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.” 750 ILCS 36/102(7)
The competing divorces will both be on file in their respective states until one is dismissed. There is no presumption that having filed first, your divorce will proceed exclusively in the state of your choice.
Timing A Divorce In Illinois
Discussing divorce with your spouse can lead to filing a divorce, which sets a whole series of events in motion which may benefit or harm you.
Every dollar saved before the divorce is final is marital property and, thus, divisible.
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
The filing date does not determine what property is marital and what property is not-marital. But, the sooner the filing date…the sooner the end of the divorce.
The filing date does determine the duration of maintenance, however.
Maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B)
Hiding Assets Before A Divorce Is Filed
Of course, alerting a spouse that a divorce will eventually be filed may provoke some bad behavior. A spouse anticipating a divorce filing may hide assets which would otherwise be divided in a divorce or minimizing income for the purpose of evading maintenance and/or child support.
Unless there was never a record of the asset (cash), there needs to be an explanation of what happened to the missing asset. Otherwise, the missing asset will be deemed a dissipation.
“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)
A spouse expecting an Illinois divorce can hide assets with little reprobation if the assets disappeared 3 to 5 years ago.
“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage;” 750 ILCS 503(d)(2)(iv)
If you are debating letting your spouse know of your intention to file for divorce, perhaps the first conversation you should have is with an experienced Illinois divorce attorney.