A divorce starts with one spouse filing a Petition for Dissolution of Marriage. A divorce that begins with your spouse’s petition starts on their terms. The petition describes the marriage from their point of view and requests the outcomes they want. Until you file something of your own, the court has only that version to work from. Many people in that position assume their chance to present their side comes later, at trial or in negotiation. In Illinois, waiting carries real risk: temporary support can end, and months of progress can be lost, if the petition is withdrawn.
The Counter-Petition for Dissolution of Marriage addresses this. It is your own divorce case, filed inside the case your spouse already started. A counter-petition is very similar to your spouse’s petition in that it requests the same kind of relief from the court. It still requests a divorce, but on your terms and using your claims. Filing a counter-petition is a modest step, but it provides you with important protections.
Key Takeaways
- A counter-petition keeps your divorce case alive even if your spouse withdraws their petition.
- File it together with your first response to the divorce papers. Filing later usually requires the court’s permission.
- A response answers your spouse’s claims. A counter-petition makes your own. Most people need both.
- Temporary orders, including maintenance, can disappear when a petition is dismissed and no counter-petition is on file.
What a Counter-Petition Does
When your spouse files for divorce, the court gives you each a label. Your spouse is the petitioner, because they filed the petition. You are the respondent, because you respond to it. These labels are mostly meaningless, but they carry one real difference: the petitioner controls their own petition. They filed it, and within limits they can withdraw it. A counter-petition removes that control from your case. Once you file your counter-petition, the divorce can move forward on your petition even if your spouse withdraws their initial petition.
The counter-petition has its own filing fee, but the benefit is that you get to raise the claims your spouse left out of the original petition. The amount varies by county, so consult an attorney for the current figure in your area.
Counter-Petition vs. Response to a Divorce Petition: You Usually Need Both
When you are served with a Petition for Dissolution of Marriage, you must act. You file an appearance, or your attorney files one for you. The appearance is the form that tells the court you are participating in the case. You will also file a written response to the petition that admits or denies each allegation contained in your spouse’s initial filing. The response is defensive by nature: it answers your spouse’s claims, and nothing more.
The counter-petition gets filed alongside your response. It is the affirmative document. A counter-petition is a counterclaim under 735 ILCS 5/2-608, which governs counterclaims in all kinds of lawsuits in Illinois. It puts your own requests in front of the court. It can speak to all of the following issues:
- Parenting time and parental responsibilities
- Child support
- Maintenance, what many people call alimony
- Division of property and debts
If the original petition never mentions child support, your counter-petition is where that request enters the case.
Many respondents in a divorce case are in agreement with the divorce. However, they want it to be done using accurate facts and want to put their own requests before the court. This is why the response and the counter-petition travel together.
The question of whether to file a counter-petition comes up in the first days after being served with divorce papers. By then, the response deadlines are already running. Make sure to discuss a counter-petition in your first conversations with your attorney.
Does It Matter Who Files First in an Illinois Divorce?
Who files the divorce first matters less than most people expect, because Illinois courts do not favor the petitioner over the respondent. Who files first does not change the property division or the parenting time standard. It only controls the petition itself, and that is the gap the counter-petition closes.
When to File a Counter-Petition in Your Illinois Divorce
If you want to file a counter-petition, you should file it at the same time you answer your spouse’s petition. Filing later is possible, but you have to get the court’s permission first. There is also a chance you might forget to do it later. Doing it right away, along with your appearance and your response, takes that risk off the table. It also means one court appearance and one set of deadlines instead of two. If you file your counter-petition with your appearance and response, it will usually be heard on the first status date.
After you are served, you have 30 days to file your appearance and your written response. The counter-petition belongs in that same early window. Courts routinely grant leave to add one later when there is a reason, but “later” invites argument, and it gives your spouse time to dismiss their petition first.
Why File One: The Voluntary Dismissal Problem
Think of a counter-petition like car insurance. If you get into a car accident, the other driver can file a claim with your car insurance if they believe you were at fault and should have to pay for their damages. In their claim, they can tell the insurance company what they believe actually happened. And you are free to do the same thing. You can also file an insurance claim under the other driver’s car insurance and tell the insurance company what you believe actually happened, that the other driver is at fault, and that they should have to pay for your damages. If the other driver decides not to go forward on their claim with your insurance for any reason (maybe they know deep down that they are at fault), you can still proceed on your insurance claim that you filed against them.
The divorce works the same way. Your counter-petition is your own claim, and it stays on file no matter what your spouse decides to do with theirs.
Illinois lets a petitioner voluntarily dismiss their own petition before trial under 735 ILCS 5/2-1009, provided that they give notice to the other side and pay costs. If your spouse voluntarily dismisses their Petition for Dissolution of Marriage, and you did not file a counter-petition, the case ends. Any temporary orders entered in the case up until then can end with it. However, if you did file a counter-petition, you can move forward with your counter-petition even if your spouse voluntarily dismissed their petition. It eliminates the need to re-file a new petition and start the case over from scratch.
That single decision changes everything about where you stand:
| If your spouse dismisses their petition… | ||
| Counter-petition on file | No counter-petition on file | |
| Your divorce case | Continues on your petition | Ends that day |
| Temporary support and other temporary orders | Stay in place | Can end that day along with the case |
| The months already invested | Preserved | Gone |
| What you have to do next | Nothing, the case keeps moving | File a new case and pay a new filing fee |
| Who controls whether you stay in court | You do | Your spouse does |
Here is what that looks like in practice, in a situation that often comes up in divorce cases. A wife who never filed a counter-petition was receiving temporary monthly maintenance (formerly known as alimony). Her husband was the one to file the initial petition. Tired of paying every month, he voluntarily dismissed his petition at the next court date. Because he filed the case and the wife never filed a counter-petition, he could end it. The temporary maintenance order died with it and her monthly support stopped. Her only remedy was to start from the beginning and file a whole new case, and months of progress were lost. Had she filed a counter-petition, her case would have moved forward on her own counter-petition and the monthly maintenance would have continued.
The same issue can show up in many other scenarios. One spouse files, and the other starts building around the case: a new apartment, a parenting schedule, a budget. Then the filing spouse has second thoughts, or changes strategy, and dismisses. Without a counter-petition, the case ends, and one spouse needs to file an entirely new case to proceed.
Timing may also carry monetary consequences beyond the temporary orders. For maintenance, Illinois measures the length of the marriage from the date of the marriage to the date the dissolution action was commenced under 750 ILCS 5/504(b-1)(1)(B). When a petition is dismissed and the case ends, that dissolution commencement date changes and the duration calculation moves with it. A counter-petition that keeps the original case alive may preserve the earlier date. Whether that helps or hurts depends on which side of the maintenance question you are on. That is a conversation for your attorney, not a rule of thumb.
When a Counter-Petition Is Not Worth Filing
While a counter-petition can be important, not every case needs one. In a truly non-contested divorce, both spouses want the same outcome and the petition already requests it. A counter-petition in that case can read as escalation without adding protection. Or it can be an additional, unnecessary cost. If the case is expected to settle quickly, a counter-petition is usually not needed, because nothing in the petition needs a competing claim. The calculus changes the moment the case stops being agreed. If there is any real dispute over parenting time, support, or property, the protection outweighs the optics.
Even in an agreed case, watch the calendar. A divorce can also be dismissed for want of prosecution when it sits idle for months, so keeping the case moving matters whether or not a counter-petition is on file.
What Happens After You File a Counter-Petition
Once you file your counter-petition, you are known as the Respondent/Counter-Petitioner. With your counter-petition on file, your spouse (the Petitioner/Counter-Respondent) must respond to the factual claims you made in your counter-petition by either admitting or denying the allegations. The petition and the counter-petition usually mirror each other: they discuss the same marriage, the same children, and the same finances, but describe them from two sides. From there the case follows the divorce litigation process on a single track. The counter-petition does not create a second lawsuit or a second schedule.
If the Petitioner does not respond or answer your counter-petition, then the court will assume that the Petitioner agrees with all of your factual claims and your relief being requested. The default rules cut both ways. Deadlines in a divorce case deserve respect from both sides.
Protect Your Illinois Divorce Case from Day One
A counter-petition closes the one door your spouse controls: ending the case without you. If you have been served with divorce papers, ask your attorney about a counter-petition at the same time you discuss your response. For information about this topic or any other concerns related to divorce in Illinois, contact the family law and divorce attorneys at Anderson Boback & Marshall. Divorce and family law is all that we do, and we will be happy to help.
Frequently Asked Questions About Counter-Petitions in an Illinois Divorce
What does it mean if my spouse filed a counter-petition against me?
It means your spouse is asking the Illinois court for a divorce on their own claims instead of only answering yours. You must respond to it, admitting or denying each allegation, or the court can treat the claims as agreed. It does not mean your case is weaker. Both petitions move forward together. Anderson Boback & Marshall regularly sees counter-petitions in contested Illinois divorces.
Can I file a counter-petition after I have already answered the petition?
Usually yes, with the court’s permission. The clean window is the 30 days after service, when your appearance and response are due. After that, Illinois courts routinely grant leave to add one, but permission is not automatic. It is safer practice to file it alongside the response.
What happens if I do not respond to a divorce petition in Illinois?
If you do not file an appearance and response within 30 days of service, the Illinois court can enter a default judgment. That can grant the divorce on your spouse’s terms, including property, parenting time, and support. Responding on time keeps every issue open. Filing a counter-petition at the same time puts your own requests before the court.
Do I need a lawyer to file a counter-petition for dissolution of marriage?
Illinois law does not require one. However, the counter-petition sets forth the claims you will pursue for the rest of the case. Any requests left out can be harder to add later on. Also consider the timing trap a counter-petition prevents: a voluntary dismissal under 735 ILCS 5/2-1009 that ends your temporary orders.
Does filing a counter-petition slow down an Illinois divorce?
No. The counter-petition is heard in the same case, on the same schedule, by the same judge, and the two filings move together through the same steps. An agreed divorce can finish just as quickly with one on file. What changes is your protection, not your timeline.
Can I withdraw a counter-petition once it is filed?
Generally, yes. Illinois permits the filing party to voluntarily dismiss their own claim before trial, and that also applies to a counter-petition. Withdrawing gives up the protection the filing provides, so the decision deserves the same care as the filing did. An Illinois divorce attorney can weigh the timing with you.
