by Attorney Eric D. PuryearIn a divorce or custody case, there can be advantages to being the first to file.
Every divorce or custody case in Illinois and Iowa start with one person (who is called the Petitioner) being the one to start the case. The person who did not start the case (who is called the Respondent). Since the Petitioner is the one to start the case, they have more control over when things commence and some scheduling matters at the beginning of the case. In some cases, those advantages will be significant.
By being able to control when the case starts, the Petitioner can pick a time that is convenient for themselves. For example, a Petitioner in a divorce or custody case can ensure that their attorney does have documents served at a time that would be inconvenient. The Petitioner can also have their attorney seek an emergency injunction at the time the case is filed in a situation involving minor children where there is concern about parental kidnapping or child abuse, so as to avoid the risk of the other parent reacting improperly to the fact that a case was filed.
The Petitioner may also benefit from being able to control the scheduling of initial court dates. In cases involving minor children, it is common to have a temporary matters hearing in Iowa or a temporary allowances hearing in Illinois, where the issues of child custody, child visitation, and child support are handled. A Petitioner may schedule such a court date at the time the documents are filed, allowing for court to happen sooner than would often be the case if the other party were to file first and act to delay the scheduling of such a court date through various pretenses.
Some cases will involve situations that allow either party to file, but in different locations. Consider, as an example, a situation where the husband lives in New York and the wife lives in Iowa, and they have no children. The husband could file in New York, at which point the New York court will handle the divorce and the wife will be forced to retain an attorney in New York, and travel to New York for court. That situation is obviously less expensive and more convenient for the husband, while creating greater expense and inconvenience for the wife. Had the wife been first to file in Iowa, then the case could proceed in Iowa near the wife and save her both time and money.
Not every case is one where there is an advantage to be had by filing first. The pros and cons of being first to file are something that a person with a potential divorce or custody case should discuss with their attorney. Those who have received divorce or custody papers are wise to promptly address the matter, as failing to act in a timely fashion can and will cause problems.