Do I Need to File a Counter Petition for Divorce in Illinois?

 Posted on October 10, 2013 in Family Law

If my spouse files for divorce in Illinois, do I need to file a counter petition also asking for divorce? It sounds like a simple question doesn't it? But the answer is not what you would expect.

First, assume that your spouse has filed a divorce case, now called a dissolution of marriage case. Second, assume the two of you have come to a complete agreement. This would include jointly deciding such things as:

• Custody of your children - joint custody versus sole custody - who will the children reside with;
• Where the children live day to day called parenting time or visitation;
• The amount of child support;
• The amount of maintenance if any ( used to be called "alimony") and for how long it will be paid;
• Dividing up of your assets including houses, accounts such as savings accounts, retirement accounts, stock accounts, and personal property such as household furniture, jewelry, automobiles;
• Deciding what debts each of you will pay.

This is a general list of what most people need to decide to have a truly uncontested case but not a complete list which varies with each case. Then, there is no need to file a counter petition for dissolution of marriage if your spouse has already filed his or her petition seeking dissolution of your marriage.

However, if there is going to be a dispute over any of these issues or you are not sure about having such a dispute, then you need to file a counter petition requesting the judge to grant you a dissolution of marriage as well. It does cost several hundred dollars to file a Counter Petition but it is a good idea anyway.

Why would I ever need to do that?

The simple reason is this: Your spouse's dissolution of marriage case on file with the court goes along as you try to come to a complete agreement, but low and behold there is no agreement as to all the issues.

You have spent months or even years in court and the case is set to go to trial. If on the day the case is set for trial your spouse says, "I want to dismiss my case right now," the divorce judge must grant that request and the case is dismissed at once. You and your spouse leave the courthouse still married and you need to start all over again.

But if you had simply filed a counter petition for dissolution of marriage then the case is not dismissed and you go to trial on your counter petition and get a divorce, instead of starting from scratch again. So the answer to the question is yes, you do need to file a counter petition just to be safe.

If your spouse has filed a petition for divorce, it's important to contact a knowledgeable family law attorney. Do not leave control of your divorce (and your life) totally up to your soon to be ex-spouse.