Typically, the spouse that files first has obvious advantages in the selection of what is called "venue" and a slight advantage at trial.

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In most divorce and custody cases, the spouse who files first gains important strategic advantages regarding venue selection, litigation posture, and sometimes even settlement leverage. Contrary to what many people are told, filing first absolutely can matter.

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Many divorce and custody lawyers take the position that “it does not matter who files first.” While that statement may sound practical or reassuring, it is often incomplete and sometimes simply wrong. In many family law cases, especially those involving parties living in different counties or different states, the decision regarding when and where to file can significantly impact the direction, cost, and outcome of the case.

 

Most importantly, there are situations where filing first may determine what courthouse hears the case. Lawyers refer to this as “venue,” which is simply a legal term for the location where the case will proceed. Venue matters because it affects convenience, travel, attorney familiarity with local judges and procedures, scheduling, and litigation costs.

 

For example, if one spouse resides in Chicago (Cook County) and the other spouse lives in St. Charles (Kane County), either courthouse qualifies as a proper venue.

 

Naturally, the spouse living in Chicago may prefer to litigate in Cook County, while the Kane County spouse may strongly prefer a local courthouse closer to home. The same issue arises when one parent relocates to another state before a custody case is filed. In these situations, the race to the courthouse can become critically important.

However, many attorneys and litigants misunderstand one important detail: filing first is only part of the equation. Service of process matters too and sometimes it matters more.

 

Under 750 ILCS 5/104, objections to venue may be waived if they are not raised before the deadline to respond. This creates a procedural issue that many lawyers completely overlook. If one spouse files first in County A, but the other spouse later files in County B and manages to serve the opposing spouse first, the second-filed case may create the first procedural deadline to object to venue. If that objection is not timely filed, venue arguments may be waived altogether, and the second filed case wins.

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In other words, filing first without promptly serving your spouse may not accomplish nearly as much as people assume. Sometimes the spouse who files second but serves first ends up with the stronger procedural position. Timing, service, and strategy all work together.

 

Another important reason why filing first may matter is trial positioning. Although most divorce and custody cases settle before trial, not all do. If a case proceeds to trial, the party who filed first generally presents their evidence first through what is called their “case in chief.” Judges are human beings, and first impressions matter. The party who first presents the facts, witnesses, timeline, and theory of the case often shapes the initial framework through which the evidence is viewed.

 

Filing first may also provide additional strategic benefits beyond venue and trial presentation. It allows a party time to prepare emotionally, financially, and procedurally before litigation begins. Bank records, parenting schedules, financial documents, business records, and witness preparation can often be organized more effectively when the filing is planned rather than reactive.

 

That does not mean every person should immediately rush to the courthouse. Filing first simply for the sake of filing first can sometimes inflame tensions unnecessarily and increase litigation costs. An experienced divorce attorney should evaluate not only whether filing first is advisable, but also when to file, where to file, when to serve, and how to avoid unnecessarily escalating conflict.

 

All things considered, an attorney who dismisses the importance of filing first or fails to understand the procedural importance of service and venue waiver issues may not be considering all of the legal and strategic implications involved in the early stages of a family law case.

 

If you are considering divorce or a custody action in Illinois, contact Paul D. Nordini to discuss your options, your potential venue advantages, and the best strategic approach for protecting your position before litigation begins.

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Mr. Nordini uses a research based approach to family law cases where details and experience matters most.

 

Paul D. Nordini
(630) 416-6600
paul@paulnordini.com

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