Plaintiff or Defendant - Does it Matter?

Just like any legal matter, in a divorce matter the party who files the action becomes the Plaintiff, while the “opposing party” is referred to as the Defendant. This is true whether the parties are in agreement with filing for the divorce or not. To many clients the language seems contradictory. Unlike small claims or criminal matters, in a divorce action there may be no specific “wrongdoer”. In fact, the person who may be “at fault” for the divorce may also be the person who files first. So what, if any, significance, do the labels Plaintiff and Defendant have in the divorce action itself or on the parties in general?

Simply put, in the legal system there is little significance to the titles of Plaintiff and Defendant, aside from the order in which the documents are filed. As touched upon in my “Starting a Divorce Action: Parts 1 & 2”, the Plaintiff is charged with paying the initial filing fee and personally serving the Defendant with the commencing documents. In response, the Defendant must submit, file and serve his or her own papers as well, though no fee is attached.  Once both parties have been properly notified of the divorce action and have “appeared” through their filings, the parties are on relatively even footing. 

The Plaintiff and Defendant are equally in control of negotiating the matter outside of court, as either party can file the request for judicial intervention (asking a judge to be assigned to the case) if he or she believes a settlement cannot be reached. When appearing before the court, each party will equally be bound by the rules. They will each be required to attend all court appearances, comply with disclosing income, assets and liabilities and pay any fees ordered by the court. If the court appoints any experts to value marital assets or evaluate the children, the parties will share in those costs. Likewise, if an attorney is appointed by the court to represent the children, both Plaintiff and Defendant will share in the cost of that representation. 

If the Defendant’s “answer” appropriately includes counterclaims, both parties will be allowed to assert his or her own claims in the divorce action. If the Plaintiff chooses not to proceed with the divorce, a Defendant who has filed an answer with counterclaims can proceed with the divorce in the Plaintiff’s absence, just as a Plaintiff may proceed on default if the Defendant fails to appear and participate in the divorce. Both Plaintiff and Defendant will be entitled to seek custody, child support, maintenance (spousal support/alimony) and a piece of the marital pie (equitable distribution). Likewise, either Plaintiff or Defendant may be ordered to pay child support, maintenance, counsel fees or other financial obligations under court order.  

In the event that the parties are unable to reach a resolution, both the Plaintiff and the Defendant will have an opportunity to present their cases at trial. The Plaintiff will be required to present his or her case first, which may be considered a benefit to some or drawback to others depending upon the individual circumstances. However, when he or she rests, the Defendant will be granted the same time and attention by the court to present their own case. 

Upon a resolution of the matter, the Plaintiff will “take” the divorce, meaning that it will be granted to the Plaintiff. The documents, including the judgment of divorce will reflect the same. This requires the Plaintiff to file the final documents to insure that the judgment of divorce is processed and signed. However, the attorneys may agree to have the Defendant take those steps instead, as nothing precludes either party from doing so. Or, if the Defendant wants the divorce finalized and does not think the Plaintiff will handle the filings, the Defendant may choose to file the final documents instead. 

Because of the fact that both parties are equally required to participate in the divorce action, both the Plaintiff and the Defendant will equally benefit from representation by experienced counsel. Reach out to my office to discuss how this information pertains to your specific set of circumstances. 


  1.  The parties in certain legal matters are referred to as Petitioners and/or Respondents. 

  2.  Speak to your local religious leader regarding the effects of being Plaintiff and/or Defendant on your ability to remarry religiously. 

  3.  The cost of experts and court-appointed attorneys are generally paid based on a percentage or “pro rata” determined by the parties’ incomes. 

Danielle T. Montalto-Bly