When it comes to divorce or dissolution of marriage, there are always two parties. One spouse becomes the plaintiff while the other spouse becomes the defendant. But who is the plaintiff and who is the defendant in a divorce? Why does it matter? The answer isn’t as complicated as many people might think. Here at The Jimenez Law Firm, we want to make sure all of our clients understand the roles in divorce and the benefit of filing for divorce first.
What is the Difference Between the Plaintiff and Defendant in a Divorce?
The terms plaintiff and defendant are used in almost all civil proceedings. In the simplest legal terms, the plaintiff is the individual initiating the divorce process. When a marriage ends, then typically one spouse will file for divorce. This isn’t to say that the other spouse isn’t aware of what’s going on. In fact, it’s not uncommon for the divorce to be mutually agreed upon at the time of filing. However, in order to become legally divorced, the married couple must follow the legal procedure to end their marriage.
In a divorce case, the plaintiff may also be referred to as the petitioner as the act of filing the divorce involves filing a Petition for Divorce. This form formally tells both the other spouse and the judge that you’re requesting the marriage be legally ended.
The defendant is the person who is served with the divorce papers after the plaintiff files for divorce. As the defendant responds to the Petition for Divorce, they are also commonly called the respondent.
In the state of Texas, it is more common to see the terms “Petitioner” and “Respondent.”
Does it Matter Who Files for Divorce First?
In most cases, it doesn’t really matter who initiates the divorce proceedings. The court does not award more or less based on the concept of who filed first. Nor does the court assume you are the victim should you file first. In addition, court fees seem to be similar for both the plaintiff and the defendant with only minor differences.
Some individuals prefer to file first because it allows them to outline their requests from the start. However, some individuals prefer to allow their spouse to file first to get a better understanding of what they are interested in. Either way, the court does not favor one person over the other based on filing status.
Filing for Divorce
While some people are completely caught off guard when their spouse files for divorce, others tend to be aware. Either way, the divorce process can be mentally, emotionally, physically, and financially draining, even in the best of circumstances. This is why hiring a qualified lawyer is so important. A lawyer can help you begin the divorce process on the right foot by making sure all paperwork is filled out correctly and that everything is in order for the proceedings to begin.
Starting the Process
The first step in filing when you’re the plaintiff in divorce is to file the Original Petition for Divorce. This details that you want a divorce and includes your requests. Your attorney can help you with this to ensure nothing is overlooked.
You’ll want to make a few copies of the paperwork before taking it down to the District Clerk’s office in the county courthouse in the county in which you or your spouse has lived for the previous 90 days. The filing fee for this step is generally around $300.
If you’re unable to pay the filing fee then you may be eligible to have the fee waived through an Affidavit of Inability to Pay, which requires you to disclose your financial situation to the court.
Once you’ve submitted the Original Petition for Divorce the clerk will assign a number and a court.
Grounds for Divorce
When it comes to the reason you’re filing for divorce, or the grounds for divorce, there are seven options. They include:
- Living apart for at least 3 years
- Confinement in a mental hospital for at least 3 years
- Abandonment for a period of at least 1 year
- Conviction of a felony
You must choose a ground for divorce when you file your paperwork. Your attorney can walk you through your options to help you select the one that best fits your situation.
After you’ve filed, you’ll receive two copies of the divorce paperwork. One copy is for you and the other copy is for your spouse. You are required to give legal notice to your spouse once you file for divorce. This means that the stamped copy of your divorce papers must be given to your spouse in one of the following methods:
- Hire an official process server or constable to serve the papers to your spouse. Once served, you will get a Return of Service that is also filed with the clerk to prove that your spouse received their paperwork.
- Sign a waiver of service in front of a notary. If your spouse prefers not to be served by an official process server, they can sign a waiver of service in front of a notary that lets the court know they’ve received their paperwork.
- Your spouse files an Answer by the Respondent. This shows that the spouse is actively participating in the divorce. However, the Answer does not assert claims against the plaintiff. To do this, the defendant must file a Counter Petition for Divorce if they do not agree with what is outlined in the Original Petition for Divorce.
It’s a good idea to speak with your family law attorney when it comes to deciding which way is best. If your spouse is aware that you’re filing for divorce and you’re on relatively good terms, then the solution may be different than if your spouse wasn’t aware that you were filing or if you’re not on good terms.
Contested or Uncontested Divorces
When your spouse files an Answer, it will either note that they agree to the terms of divorce outlined in the Original Petition for Divorce or that they don’t agree with the terms. If they agree, then it is an uncontested divorce. If they do not agree, then it is a contested divorce. Divorce costs vary depending on contested versus uncontested divorces. This is why it’s a good idea to think about what is fair when you file your original petition.
An uncontested divorce tends to be the better option for all involved parties. This means that you and your spouse have worked together to agree to the terms of your divorce. This could mean you reached an agreement before you even filed, or it could mean that you reached an agreement through mediation. Either way, you’ve reached that agreement which means there’s no need for a formal trial. Once you both agree that you’ve reached a divorce settlement you both feel is fair, the family court judge will approve the settlement agreement unless they feel it is unfair to one person or another. Uncontested divorces not only save a lot of time, but money as well.
A contested divorce occurs when you and your spouse are unable to reach an agreement. If you’re unable to agree, then you’ll need to go to court where the judge will decide on your issues in front of a jury. A contested divorce is much more expensive, it will take much longer, and there is more paperwork. In addition, the judge may decide on things in a way that neither of you is happy with. This is why divorce attorneys encourage mediation. Mediation puts you in greater control when it comes to your divorce settlement.
Choosing a Path
Now that you understand the basics of the divorce process, you can decide how you want to proceed. If you and your spouse agree to an uncontested divorce right away, then the state of Texas has free divorce forms online. However, these forms are complex, and you may need assistance from an attorney to complete them correctly.
If both spouses agree you can also opt for a low-cost DIY or online divorce. You’ll do an online interview and then fill out the forms. Again, this can be overwhelming to some, and you may be better off seeking the assistance of an attorney.
If you and your spouse can’t agree, or if your divorce is complex due to minor children or a business owned by either you or your spouse or a joint business venture, it’s best to hire an attorney. Each spouse should have their own attorney to represent their interests and the best interests of any involved children. It’s likely that your attorneys will recommend mediation.
Mediation is a way for you to negotiate the delicate subjects such as alimony and property in your divorce with the help of a neutral third party and your attorneys. Mediation is generally less expensive than a trial and it gives you and your spouse the opportunity to find a common ground rather than leaving all decisions up to the judge.
Mediation helps couples work through the major issues including community property also known as marital property, separate property, marital debt, spousal support, and child custody and child support. The ability to compromise during mediation is vital to allowing you and your spouse to reach an agreement you both are comfortable with.
This is also typically when
Finalizing the Divorce
If you and your spouse are able to come to an agreement you both would sign a final decree of divorce. This document is then presented to the judge for their signature. Once it has been approved then the judge will sign it and your divorce will be finalized.
If you can’t agree, then the judge will decide for you at the final hearing, and you will be bound to the decision by court order.
You Don’t Have to Divorce Without Help
Through the divorce process, it is important to remember that you don’t have to do this alone. A qualified and experienced divorce lawyer can make a significant difference when it comes to your wellbeing. They will not only help you with all the complex paperwork, but they can help you through the mediation process, and ensure your rights are protected. While some people shy away from hiring divorce attorneys because of attorney fees, more often than not, people are happy they made the decision to hire a professional to guide them through the difficult time.
If you’re considering filing for divorce or if your spouse recently filed, then speak with the experienced team at The Jimenez Law Firm. We’re here to defend your interests and make sure you and your spouse reach a fair divorce settlement. We also provide legal advice and guidance along the way to ensure you’re always aware of all of your options as you navigate the waters of divorce.