Who Is the Plaintiff in the Divorce?

When enduring the legal process of a marital separation, there are always two parties. One spouse is the plaintiff in divorce, and the other is the defendant. The question often arises — 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 the plaintiff in divorce vs. defendant in divorce and why this is important to understand throughout the legal proceedings.

The terms “plaintiff” and “defendant” are used in nearly all civil proceedings. According to U.S. law, the plaintiff in divorce, like in any other case, is always the individual or corporation that initiates a lawsuit. They are the ones seeking some form of legal recourse and, therefore, file a petition with the courts.

To understand this in the context of divorce cases, let's translate this rule to these legal proceedings. When a marriage ends and a couple separates, it is usually one spouse, the plaintiff in divorce, that initiates the divorce action. This person becomes known as the plaintiff in divorce as they are the one filing for the divorce and first presenting the case to the courts. For this reason, the plaintiff in divorce is also sometimes referred to as the “petitioner.” The other spouse then assumes the role of the defendant. The defendant receives divorce papers from the plaintiff in divorce, which they must sign. As such, they are sometimes referred to as the “respondent.”

Every state in the U.S. 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 in divorce could prove that their partner did something to justify the end of a marriage. Examples include adultery, physical cruelty, abandonment, criminal conviction, or permanent mental illness. 

Today, thirty-three of the U.S. states are fault states, where the plaintiff in divorce 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, as a plaintiff in divorce, you can have your divorce approved without any real reason or wrongdoing. Currently, seventeen states are completely no-fault states. In these no-fault states, the plaintiff in divorce 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.

When going through a divorce, many people, including the plaintiff in divorce, want to know whether it is more favorable to be the plaintiff vs. the defendant. The truth is, while being the plaintiff in divorce does not necessarily provide a legal advantage as such, it does have certain practical advantages. For example:

Setting the tone: The plaintiff in divorce, by filing first, has some control over the timing and tone of the proceedings. The plaintiff in divorce can choose to discuss the impending separation with their partner in advance or blindsight them. The former approach is usually advisable as it helps orchestrate a more amicable divorce, keeping the well-being of both parties in mind.

Appointing an attorney: The plaintiff in divorce gets to choose an attorney first. This can be beneficial, especially if the family already has an existing relationship with a law firm that is familiar with their family situation. Since good representation can greatly influence the outcome of a divorce settlement, being the plaintiff in divorce and getting the first pick of an attorney can be an advantage. 

Preparation: The person who is the plaintiff in divorce gets more time to prepare for the legal proceedings. This can include arranging financial records, account numbers, and other necessary documents. Meanwhile, the defendant typically has to respond to the divorce papers within 20 days of the filing date. By being the plaintiff in divorce, having this additional preparation time can reduce stress and ensure a smoother process.

Understanding the role of the plaintiff in divorce and the defendant in divorce is crucial to mitigating emotional stress and ensuring a smooth legal process during a marital separation. While being the plaintiff in divorce doesn't provide a legal advantage per se, it does offer a few practical benefits that can affect the overall course of the proceedings. Accessibility to resources like family-related templates and specific legal tools such as a divorce settlement agreement can also provide a valuable guide through the complexities of this challenging time. 

And remember, while the legal procedures surrounding divorce can be daunting and confusing, neither the plaintiff in divorce nor the defendant need to navigate it alone. Law professionals and resources exist at your disposal, for instance, lawyers near you specializing in family law, to help ensure fair outcomes that consider the best interests of all parties involved.