When going through the legal process of a marital separation, there are always two parties. One spouse is the plaintiff and the other is the defendant. Who is the defendant in a divorce case? Similarly, who is the plaintiff in divorce? And more importantly, why does this distinction matter? In this article, we provide a breakdown of plaintiff vs defendant in divorce and why this is important to understand throughout the legal proceedings.
What is the Difference Between the Plaintiff and Defendant in Divorce?
The words “plaintiff” and “defendant” are used in nearly all civil proceedings. According to US law, the plaintiff is always the individual or corporation that initiates a lawsuit. They are the ones seeking some form of legal recourse and they therefore file a petition with the courts. The person or organization the plaintiff is initiating the lawsuit against is known as the defendant.
To understand how this works in divorce cases, we can translate this rule to these legal proceedings. When a marriage ends and a couple separates, it is usually one spouse that initiates the divorce action. As with the general definition, this person is known as the plaintiff. They are the one that files for the divorce and first presents the case to the courts. For this reason, they are also sometimes referred to as the “petitioner.” The other spouse then assumes the role of the defendant in a divorce case. The defendant will receive divorce papers from the plaintiff, which they must sign. As such, they are sometimes referred to as the “respondent.”
Grounds for Divorce
Every state in the US has its own set of rules outlining the grounds for divorce. This is a set of circumstances in which the courts would grant a marital separation and then termination of the marriage. In the past, all states were considered fault states. This meant that a divorce would only be approved if the plaintiff could prove that their partner did something to justify the end of a marriage. Examples include adultery, homosexuality (for heterosexual couples), physical cruelty, abandonment, criminal conviction, or permanent mental illness. Today, thirty-three of the US states are fault states, and the plaintiff can choose to cast blame on their partner when filing for divorce. If filing for a fault divorce, your attorney must prove the allegation for the divorce to be granted.
However, every state in the US today also accepts no-fault divorces. In other words, divorces can be granted without a justifiable reason for the marriage to end. Examples include separating on the grounds of incompatibility or irreconcilable differences. This means that anyone in any US state can have their divorce approved without any real reason or wrongdoing. Currently, seventeen states are completely no-fault states. In these no-fault states, the plaintiff can only file for a no-fault divorce.In most cases, it is not possible to file for divorce on the grounds of fault even where wrongdoing has occurred.
Does it Matter Who Files for Divorce First?
When going through a divorce, many people want to know whether it is more favorable to be the plaintiff vs defendant. In truth, it doesn’t make any difference. As all US states accept no-fault divorces, the plaintiff does not have to prove any wrongdoing by the defendant. Therefore, who files for the divorce initially will not impact the divorce proceedings. With that being said, the plaintiff in divorce may gain some advantage. For example:
· Setting the Tone: The petitioner filing for divorce is in control at the start and can set the tone for the rest of the divorce proceedings. They can either choose to discuss the separation with their partner or blindside them. The former is always advisable to help orchestrate an amicable divorce that is better for both parties.
· Appointing an Attorney: The plaintiff in divorce will have the first pick when it comes to appointing a family law attorney. This can be hugely beneficial, especially if the family has a law firm that they have worked with previously and already know their family situation. Choosing a good attorney can improve the divorce settlement.
· Preparation: The person filing for divorce gets more time to prepare financial records, account numbers, and other evidence to facilitate the proceedings. However, it is a requirement for the defendant to return the divorce papers within 20 days of the filing date. This extra time can help reduce stress and ensure everything is in order.
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What does it mean to be the defendant in a divorce?
In a divorce, the defendant is the person given divorce papers to sign. They are also known as the “respondent” and they are NOT the person filing for the separation.
Is it better to be the petitioner or respondent in a divorce?
Being the petitioner or the respondent in divorce doesn’t make much difference. All states in the US accept no-fault divorces, so filing first won’t impact separation. However, being the plaintiff has some advantages as they have greater control around the timing of the separation and other factors.