Is It Better to be a Defendant or a Plaintiff in the Divorce

If you and your spouse are heading for divorce, we sometimes get asked if it is better to be the spouse that files for divorce first. If you are the party that files for divorce, that makes you the plaintiff. While it is natural for many people to feel hesitant about being the one to actually file the legal documents to begin the divorce process, there can be some advantages to taking that step first. One of the biggest variables is the type of divorce you plan to pursue.

Filing first is most advantageous if you are planning to file a contested divorce. Marriage is essentially a contract in the eyes of the law. When both parties agree on how to terminate a contract, the process is typically quicker and smoother. Just like with other contracts, however, when at least one party has even one issue with the terms of breaking the contract, it slows down the process and you may have to end up in court. Is it better to be Defendant or Plaintiff in divorceWhen spouses don’t agree on the terms of their divorce that is classified as a contested divorce. When you are the plaintiff, you are “steering the ship” more than the defendant. When you file for divorce, you can request the judge to issue an order to keep your spouse from changing bank accounts, transferring money out of joint accounts, changing beneficiaries on life insurance policies and retirement accounts, selling or buying property, and other similar actions.

Another benefit of filing first is that you can choose the jurisdiction in which to litigate your divorce. To file for a divorce, you or your spouse must have resided in the state of Alabama for at least 6 months. You can file a Complaint for Divorce in the Circuit Court of 1) the county where the Defendant resides, 2) in the county where the Plaintiff resides if the Defendant is not a resident of Alabama, or 3) in the county where the spouses resided at the time of separation. For the Complaint for Divorce, you’ll need to have the following information available: Name, age, and residency of both parties; names of minor children and their dates of birth; grounds for divorce; marriage date and date of separation; acknowledgment that the parties have assets and debts for division; a plea for the court to take jurisdiction of the case and provide the requested relief.

If you cannot come to an agreement, for example, on how to divide your assets or child custody during the early stages of the divorce, it will usually end up in a hearing with a judge. If you are the plaintiff, you get to present your case first. This puts you on “offense,” and your soon-to-be ex on “defense.” This can be a pro or a con, depending on your attorney’s strategy, as it could give away some elements of surprise. But generally it’s desirable to go first. You’ll also be the last to give a closing statement to the judge before she makes a ruling. Finally, if you were to decide to withdraw the divorce petition, as the plaintiff you always have the option to withdraw it. If you are the defendant, you would have to convince the plaintiff to withdraw.

Being the plaintiff or defendant is not supposed to have any bearing on the decision made by the judge in your divorce decree. But you can see how certain procedural aspects of being the plaintiff may help you feel more in control of your divorce and not as subject to the whims of your spouse. Filing first can also give you more time to be prepared mentally, financially, and emotionally for divorce. Who files first is not quite as important when it comes to an uncontested divorce.

Uncontested divorces are filed when the spouses agree on the need to divorce, the division of their property, and, if applicable, child custody matters. In Alabama, uncontested divorces are sometimes called “no fault” divorces. Generally, uncontested divorces are less expensive and are processed through the courts quicker than contested divorces. Since you both agree on everything, it doesn’t matter as much as to who is the plaintiff and who is the defendant. Parties rarely have to attend a hearing with a judge if you are filing an uncontested divorce, although some counties may require it. These types of procedural matters can vary county by county, that is why it is important to hire an experienced Birmingham divorce attorney to handle your case who knows each county’s particular requirements.

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