Who Is the Plaintiff in the Divorce?

Updated July 21, 2023
8 min read
Paper titled "Divorce Settlement Agreement", stamp, rings, Themis, pen

Introduction

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.

What Is the Difference Between the Plaintiff and Defendant in Divorce?

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.”

Grounds for Divorce

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.

Does it Matter Who Files for Divorce First?

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.

Conclusion

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.

Article by
Yevheniia Savchenko
Lawrina

Yevheniia Savchenko is a Product Content Manager at Lawrina. Yevheniia creates user interface copies for Lawrina products, writes release notes, and helps customers get the best user experience from all Lawrina products. Also, Yevheniia is in charge of creating helpful content on legal template pages (Lawrina Templates) and up-to-date information on US law (Lawrina Guides). In her spare time, Yevheniia takes up swimming, travels, and goes for a walk in her home city.

If you have any questions or suggestions regarding the product or UX content for Lawrina, feel free to contact Yevheniia directly at y.savchenko@lawrina.org or connect with her on LinkedIn.

Frequently Asked Questions

Does the plaintiff in divorce have an advantage over the other spouse?

In U.S. law, filing for divorce first does not give the plaintiff in divorce a significant legal advantage. However, being the plaintiff in divorce does offer a few practical benefits, such as the ability to gather and prepare necessary documents and financial statements. It also allows the plaintiff in divorce to have the first choice in selecting a family lawyer if there is a shared one, potentially giving them a slight advantage in the proceedings.

What is a divorce settlement agreement?

In U.S. law, a Divorce Settlement Agreement is a legal document that outlines the agreed-upon conditions of a divorce between the two parties, the plaintiff in divorce and the defendant. It covers key aspects such as the division of property, child custody and visitation, spousal support, and other relevant terms of a settlement. This agreement essentially provides a comprehensive roadmap for issues related to divorce, as agreed upon by both parties.

Where can I find a family lawyer near me?

Finding a family lawyer in the U.S. to help with divorce proceedings is simpler than it might seem. Online platforms and directories like Lawrina provide extensive listings of family lawyers near you, complete with reviews and ratings. You can search by area of expertise and location to find a lawyer that suits your specific needs.

Where can I find templates related to family matters?

Family legal procedure templates are readily available online on platforms like Lawrina. These templates cover diverse family matters such as prenuptial agreements, divorce settlement agreements, child custody forms, and plenty more. They facilitate an understanding of the document structure and what information is necessary, offering a solid starting point when dealing with family law matters.