This Week’s Blog by Eric J. Broder
Who is the Plaintiff in a Divorce Action?
In a divorce, the Plaintiff is the person who initiates or files an action for divorce against his or her spouse. In order to commence an action for divorce in Connecticut, the party initiating the action must first have his or her spouse (the Defendant) served with a Summons and Complaint, and must then have those papers returned to the appropriate courthouse with Proof of Service.
What Does it Mean if I am the Defendant in a Divorce Case?
Being the Defendant in a divorce action does not mean that you are necessarily being accused of any wrongdoing, like the Defendant in a criminal case. It also does not mean that you are opposing or contesting the divorce. In fact, many Defendants in divorce cases file their own action for a divorce against their spouse, called a Cross Complaint. In essence, the Cross Complaint establishes the Defendant as a “back up” Plaintiff; if the Plaintiff withdraws his/her action, the Defendant can still proceed within the same divorce action without having to start the proceedings over or file their own action.
Does it Matter Who Files for Divorce?
If the divorce is resolved amicably, then it makes no difference which party is the Plaintiff and which party is the Defendant. There is no strategic advantage either way. In some states, such as Connecticut, the only difference is that the Plaintiff will be asked more detailed questions about the Divorce Agreement at the Uncontested Hearing.
Does Being the Plaintiff Matter if My Divorce Goes to Trial?
Many divorce lawyers will argue that there is no advantage to being the Plaintiff. However, I believe it depends on the particular circumstances of your case. A Plaintiff gets to testify, or tell his/her story, to the Judge first. When representing a Plaintiff that may have committed improprieties during the marriage, it is sometimes more persuasive for that person to have an opportunity to acknowledge these issues upfront, rather than being put on the defensive about them. This could potentially have an impact on the Judge. However, most Judges will tell you that it is irrelevant as to who files first, as he or she will give equal weight to both the Plaintiff and the Defendant.
At Broder & Orland LLC, where our attorneys practice exclusively in the areas of Matrimonial and Family law, the question of “should I file first?” is often raised. In the event that the matter is going to be contested, based on the circumstances of the case and a thorough analysis of the facts, our advice will vary. Our attorneys will ensure that you are provided with a thorough cost/benefit analysis as to whether it might be advantageous to commence an action for divorce before your spouse does.