As a lawyer, I am often asked whether it makes a difference who is the first one to file for divorce. Some people view being the one to file for divorce as a tactical advantage that will carry favor with the judge throughout the case. Others are hesitant to file for divorce because they don't want to viewed as the party who wants out of the marriage. What is the real deal on how judges treat the party who files for divorce?
The answer is twofold. Standing before the judge as a husband or a wife in the context of custody, visitation, child support, maintenance and the division of assets and debts, there is no consideration as to which of the parties was the one to file for divorce. There simply is no consderation given as to who filed the divorce when it comes to determing the husband/wife issues in the case.
There is one advantage to being the one to file the divorce. The person who files the divorce, under the code of civil procedure, is called the plaintiff and the other party is called the defendant. The plaintiff sets the pace for the case and at trial the plaintiff is the first party to present his or her case and evidence. Another advantage to being a plaintiff is the way a non-suit is handled under the code of civil procedure.
Suppose you file a divorce case and as the case proceeds the judge makes rulings that are not favourable to you. Suppose that you feel that the judge is going to rule against you at trial. If you are the plaintiff, and the defendant has not filed a counter petition for dissolution of marriage, the plaintiff has a right under Illinois law to voluntarily dismiss his or her case at any time prior to the start of trial. The case could then be re-filed and when refiled will be randomly assigned to a judge who may or may not be the former judge. I have had cases where I have represented the defendant in a case and after obtaining favorable rulings I have filed a counter petition for dissolution of marriage to prevent the plaintiff for dismissing the case in hopes of obtaining a new judge.
The real deal is that as a husband or a wife the court takes no notice who filed the divorce and each party is treated equally. As a plaintiff you are the one who will present your case at trial. As a plaintiff, if things are not going your way, and the defendant has not filed a counter petition for divorce, you can call a "re-do" by dismissing your case and refiling and obtaining a new judge.