Plaintiff or defendant in divorce, does it matter?

November 6, 2012 6:53 PM

So, my wife and I are getting a divorce. Does it matter which one of us is the plaintiff and which is the defendant?

We're not contesting anything (meaning there are no assets we're fighting over) and we'd prefer to have as little involvement as possible. I guess my concern is that there are non-legal consequences related to being one or the other in the filing that I'm not aware of. We're either filing in Wyoming or Colorado if that is relevant. Thanks.

posted by anonymous to law & government (13 answers total)

I divorced in Colorado seven years ago, and no, it didn't matter who filed as what. We had to fill out the same paperwork, follow the same steps, divulge the same info. Plaintiff/defendant titles were just used to make sure the right person signed in the right place. There was no... you know... blame implied, nor did we interpret these titles as such.

We filed everything ourselves and the process itself could not have been easier. (I'm a former paralegal, but anyone can do this. The ex had to move out of state for work two weeks after we filed and it wasn't a problem at all.) We really didn't have any arguable assets, etc., although there was a vehicle that we might have split differently had we lawyered up. This was El Paso County. Good luck and do memail me if I can walk you through my particular experience.
posted by mochapickle at 7:06 PM on November 6, 2012 [1 favorite]

No, it doesn't make a difference -- but I know in more than one divorce the plaintiff held the fact that *they* divorced *the loser* as a badge of honor.

Make sure, though, that the courts are consistent, though: when I, the guy, was granted custody of our daughter and was the defendant, paperwork had to go back more than once because one of the lawyers had plaintiff and defendant switched one place or another. Didn't actually affect anything, but it was annoying.
posted by AzraelBrown at 7:38 PM on November 6, 2012

I know in more than one divorce the plaintiff held the fact that *they* divorced *the loser* as a badge of honor.

I was plaintiff. The ex asked if I'd like to be plaintiff, perhaps because he thought it was the gentlemanly thing to do, and I was touched by that. It made me think well of him that he'd offer me that courtesy, even though when we filed we discovered no stigma whatsoever, as I mentioned above. Our split was incredibly civil -- we were so exhausted by then -- so we'd go for happy hour cheeseburgers at the pub after the courthouse visits and that helped quite a lot. YMMV.
posted by mochapickle at 8:07 PM on November 6, 2012

Related - in many (most?) states, there is no "plaintiff" or "defendant" in a divorce case; rather, there is a "petitioner" (the person who files the divorce petition) and a "respondent."
posted by lalala1234 at 9:01 PM on November 6, 2012

In my divorce case, which began as a complaint for an annulment, there was definitely a plaintiff and a defendant. The annulment was not granted, and there did not appear to be any consequences regarding the status of the plaintiff or defendant in the ensuing divorce judgment.
posted by Juffo-Wup at 9:57 PM on November 6, 2012

I divorced in AZ. It's been so long that I can't remember if it was labeled plaintiff or petitioner. It was a very mutual divorce, but because I was the one who filed the paperwork, I was also the one who had to ultimately appear before a judge and swear that the marriage was 'irrevocably broken'.

The court appearance was much more difficult on an emotional level than I was expecting, and it was a step that my ex didn't have to take. So be aware that the petitioner might get an extra gut punch or two, depending on the actual process in your state.
posted by Brody's chum at 10:26 PM on November 6, 2012 [1 favorite]

I believe both Wyoming and Colorado describe the parties in a divorce as "Petitioner" and "Respondent."

And no, it doesn't make a difference.
posted by valkyryn at 5:37 AM on November 7, 2012 [1 favorite]

You guys, I'm so sorry: I was so wound up about the election and 1/4 of the way through a jug (a jug!) of rum and I forgot details.

1. It absolutely was petitioner and respondent at the time. I was petitioner, not plaintiff. No stigma either way between petitioner and respondent.
2. We did not have to make a court appearance. Which was a huge relief. This was because we had no contested assets, no children, no house, no alimony, etc., and our paperwork was all in accord.
posted by mochapickle at 6:18 AM on November 7, 2012

In Washington state, we filed together. He was petitioner because I was in the process of moving out of state and the petitioner was the only one who had to appear in court. Fun times.
posted by coolsara at 7:36 AM on November 7, 2012

IANYL, TINLA. In a family law clinic that I participated in during law school, we would file a counterclaim when the other party was the plaintiff, because if they dropped or stopped pursuing the case at some point, we didn't want to have to start the whole thing over. So that could be a non-legal consequence of being plaintiff vs. defendant in some jurisdictions.
posted by Carmelita Spats at 8:27 AM on November 7, 2012

We went the "fault" route. I was the petitioner, he was the respondent and took the "fault" which meant nothing at all in the long run. It was very civil and we didn't receive any different treatment for being in either role.

Seconding Brody's chum in that the court appearance was a sucker-punch that I didn't expect at all. He didn't have to appear but did anyway.

I'm very sorry. Even amicably, it's still rough. Be good on yourself.
posted by kimberussell at 8:32 AM on November 7, 2012

One thing to think about - if one of you is more motivated to get this done, they should be the plaintiff. Otherwise, there may be verbal agreement from one to file as plaintiff, but they actually don't ever get around to it.
posted by Sukey Says at 12:27 PM on November 7, 2012

The answer to the problem about confusing references to the parties in the divorce judgment and other documents is to use "Husband" and "Wife", or even better, "Ronald" and "Nancy." I hate reading a particular selection and having to go to the caption to find out which party has the obligation. If the selection is quoted somewhere, I may not even have that.
posted by yclipse at 2:21 PM on November 7, 2012