Consequences of Waiting to File for Divorce
April 14, 2020 | Divorce, Maintenance (Alimony), Parenting (Child Custody), Property
Divorce is never easy. The whole process is long, daunting, expensive, and stressful. Once you have decided that your marriage is over, it may be hard to start the process (e.g. hiring an attorney, filing a Petition for Dissolution of Marriage). Most importantly, you have to be ready. While there are many personal factors that must be considered, there are also practical and legal factors that should be considered, too. This article is intended to highlight the pros and cons of filing sooner rather than later.
If you lack knowledge about marital assets or finances, then the filing of divorce will allow you to shine a light and obtain information from your spouse. In Illinois, each spouse is required to complete a financial affidavit. Each spouse will list what he/she makes (income), spends (expenses), owns (assets), and owes (debt/liabilities). Additionally, you can issue discovery to your spouse. Interrogatories are written questions your spouse must answer truthfully. A Notice to Produce requires your spouse to provide records such as bank statements. Also, you can issue subpoenas to third parties such as banks or employers for relevant records. If you have questions about your finances, assets or matters involving your children, and your spouse isn’t answering them, you will get your answers in divorce.
Your spouse will be subject to a judge’s order. This is important if you suspect your spouse is hiding or depleting assets or not acting in the best interests of the children. For example, the Court can order your spouse to stop using certain bank accounts or to behave a certain way toward your children. This is not possible if there is no pending divorce case.
If you have minor children, then a parenting schedule must be set. Also, decision making responsibilities (on behalf of the child) need to be allocated between the parents. A parent’s role in the caretaking responsibilities of a child is a factor courts consider in resolving disputes on these parenting issues. However, generally, courts will look to the two years prior to the filing of the divorce. If your spouse was historically minimally involved in these responsibilities, he/she could begin to take a more active role while you wait to file in an effort to put him/her in a better position once the divorce is filed.
Dissipation occurs when one spouse spends marital funds for personal purposes after the marriage has broken down. For example, your spouse buys a new car with cash in order to avoid giving you half of the cash at time of the divorce. In such a scenario your spouse would probably be ordered to reimburse you half the amount of the car. Often, there is a dispute as to when the marriage began to break down (spending before the break down of the marriage is not considered dissipation and not subject to reimbursement). However, there is no question a marriage is broken down at the time of the filing for divorce. Therefore, filing for divorce should deter dissipation and protect marital assets.
Generally, the duration of maintenance one spouse receives is determined by the length of the marriage. More specifically, the duration of maintenance is determined by the date of the marriage to the date of the filing of the petition for divorce. Consequently, if you are going to be paying maintenance to your spouse, waiting to file may result in paying maintenance for a longer period of time. If you are the spouse who will receive maintenance, then waiting to file may mean more maintenance.
Assets such as stocks, retirement accounts, real property will be divided upon divorce. Once divided, you have will have sole control of what you are awarded. This is especially important during turbulent times in the market. You may want to sell assets, or invest them more conservatively or aggressively. You can’t do this until after you are divorced. While the divorce is pending you will have access to information regarding finances and should be able to exert some control over them in order to protect your interest in them.
If you are in a broken marriage, disagreements and disputes increase. These issues will grow over time and become more and more difficult to work out. What was once a minor issue could blow up. By filing for divorce you can begin resolving issues (with the help of your attorney or the judge) and move forward instead of backward.
These are just some examples of the consequences of waiting to file for divorce. You can discuss the pros and cons in greater detail with an experienced divorce attorney.
The Botti Law Firm, P.C. has been practicing family law in Chicagoland for 50 years. Please contact us at (630)573-8585 to schedule a free consultation with one of our attorneys.