Is There a Difference if I am the Petitioner or the Respondent in a Divorce Case?
The Person That Files for Divorce Determines the Role they Play Moving Forward in the Divorce Process in NJ
Couples divorce for many reasons. One spouse may discover the other cheated on them and rush to the courthouse to file for divorce. Another may wait until the last child graduates college to end a loveless marriage. And yet, mutual divorces are common, too. And whether you rush to the court, wait, or agree to a divorce, one spouse will be the petitioner and the other the respondent.
The one who feels wronged in the marriage files divorce papers as the petitioner, but either spouse can be the petitioner, regardless of the circumstances. There is no absolute moral advantage to being the petitioner. You don’t “win” because you made it to the courthouse first. Some myths surrounding the title of petitioner and respondent are that the petitioner gets to keep the house, is morally right, or is more in charge of what happens in the divorce. But these are not true. A judge decides property division upon evidentiary proof, and being first has no evidentiary advantage.
Initiating or Responding…Does it Really Matter?
However, you may feel a psychological advantage at being in control of the timing of the divorce and presenting your version of the case, especially in an at-fault divorce. At trial, you also get to present your case first. The respondent then must answer to your presentation of the facts in the complaint and at a trial. Initiating the divorce process may also make a petitioner feel more confident and in control. Additionally, when the spouses live in different countries or states, the one filing has the advantage of choosing the venue when filing paperwork with the court.
However, some might argue that you have the advantage as a respondent of knowing how to defend your case after the plaintiff reveals their evidence. Ultimately, both parties must pay their fees to the court, follow court rules regarding deadlines and filing requirements, and present their evidence to complete the divorce. The petitioner starts the divorce in court, and the respondent responds to the divorce papers.
Bringing Evidence to the Court
Once one spouse files the divorce complaint, they are the plaintiff, and when the responding party files their answer to the complaint, they are the defendant. Therefore, both parties appear in court by paying their filing fees with their complaints and answers, so a judge may hear both sides and decide what happens in the divorce. Both parties must prove their case by presenting evidence to the judge for a decision when they cannot agree. Based on the evidence of both parties, the judge decides which party gets the marital residence, alimony, child custody, and whatever else needs allocation.
Responsibilities of the Petitioner and the Respondent
But the petitioner and respondent each have duties regarding the divorce. For example, the petitioner fills out the divorce complaint and summons, listing the statistical information about the parties’ names, addresses, their children, date of marriage, financial support, and date of separation, among other details. They must also choose the grounds for divorce, alleging fault or no fault. Additional documents to fill out and file besides the summons and complaint are the Confidential Litigant Information Sheet, Certification of Insurance Coverage, and other documents, depending on your circumstances. The plaintiff fills out the lion’s share of the papers to initiate the process.
After filling out the paperwork, the petitioner is responsible for filing the complaint with the court and, within 30 days of filing, legally serving the other spouse with the complaint, summons, and any other required documents, typically through the Sheriff’s office in the county where the respondent lives. An attorney or the attorney’s registered process server may also serve the paperwork on the respondent. In a consensual divorce, the responding party may agree to sign paperwork acknowledging the service of the divorce papers without the need for personal service.
Timeframe to Respond to a Divorce Complaint
The spouse responding to the complaint has 35 days from the date of service to respond to the complaint and file with the court a general appearance or an answer, including counterclaims against the plaintiff. In other words, the respondent is either agreeing with the complaint or contesting it. The spouses may have already agreed to the divorce, so after carefully reading the complaint, the respondent may file the appropriate form for an uncontested divorce. However, after 35 days of service, the respondent is in default if they do not file a response, and the petitioner may request a default, and if granted, the respondent has no say in the proceedings.
Properly Handling the Different Roles of Divorce Petitioner vs. Respondent
Whether you are the petitioner or respondent, a divorce is never easy, even consensual divorces. Many experience divorces like a death or a failure. So, when you are the petitioner, be forthright with your reasons for the divorce and stay calm when discussing divorce with your spouse. As the respondent, you want also to remain calm and consider your spouse’s reasons and plans regarding the divorce. When the complaint is the first you learn of your spouse’s desire for a divorce, you must read it carefully to understand what it alleges to prepare your response.
Both parties benefit from gathering evidence to support their claims and obtaining appropriate financial and other records regarding income, property, and debts. And while you and your spouse may disagree on certain aspects of the divorce, such as child custody, alimony, or property allocation, you are most likely better off agreeing than letting a judge decide.
Petitioner or Respondent in a NJ Divorce Case? Talk to the Skilled Attorneys at Montanari Law Group
With the help of an experienced divorce attorney at The Montanari Law Group, you can negotiate a marital settlement agreement and expedite your divorce by filing the correct forms to start or respond to the proceedings in Haledon, Bloomingdale, Caldwell, Woodland Park, Montvale, Essex Fells, Paramus, and throughout Passaic County and surrounding areas. Filing the wrong papers can delay the divorce. So, ask for a consultation with a creative, attentive, and results-oriented divorce lawyer on our team to understand what you will need to start or respond to a divorce complaint and how the divorce proceeds through the court. Armed with knowledge and a skilled attorney on your side, you can feel more confident about your divorce as a petitioner or respondent. Contact our Little Falls office for a free consultation at (973) 233-4396 or use our online form.