No. If this were a criminal issue, or even products liability case in which the Defendant has to truly defend his or her self, and the Plaintiff does not, then this would be a whole new story. In a Divorce case allegations are flying back and forth all over the place and both parties are saying the worst about each other. (most of the time…)Then both sides spend time building themselves back up to the court. “Look my wife is putting the child in a chicken suit twice a week. That’s abuse.” “I make the child wear J Crew. That’s me being responsible.” Really? The thing is, some lawyers we know actually make it a point to become the Plaintiff in every case. They’ll go so far as to make sure they file an entire new action to get the other party served before their client is serving KNOWING there are already papers pending. What does that mean? Double the filing fees, double the process service fees, and double the complaint drafting fees. That’s a waste of money. It confuses the court’s staff because there are two exact same cases pending (same parties, same twisted facts, and same property) and a waste of the court’s time. Our clients really don’t understand why it matters to be the plaintiff, but sometimes they really want to be the Plaintiff. What does it really mean if you’re the plaintiff in the case?
1. You present your case first. You get to say bad things about your ex before they do the same. They see what you bring, and they bring their best game back. You show the Judge how wonderful you are before they get a chance to show the judge how wonderful they are. However, if you’re the Defendant you get to hear everything the Plaintiff has said about you, and you can use the extra time that you have before presenting your case to plan a great rebuttal and counterattack. Also, you are the last thing the judge hears before making her decision…
2. You pay the filing fee. You filed the case, so you must pay the price. If you’re the Defendant, you’re riding on the filing fee the Plaintiff already paid meaning you saved around $200.00.
3. You pay the Service Fee. Depending on who you get to serve the Defendant, this could be anywhere from 10.00 to 100.00 dollars. Also, you have to worry about whether the person gets served or not, or when they get served. There are cases where people avoid service for months! (I once had a process server who had to stake out a woman’s house just to get her served. He found out quickly that the elderly lady liked to walk around naked at home. She also refused to answer the door even though she was clearly home … in the nude).
4. You get to say you broke up with your ex, not that they broke up with you. It’s like junior high on this one. Sometimes when people find out their ex is about to file, they want to be the one who ends the marriage, so they file first. Really? If I were in that position (unless he were cheating or really a mean person) I’d say… go ahead… you pay that extra cash.
5. You’re not “the Defendant.” I’ll admit it, the term has negative connation. I blame Law & Order. However, once again, in Divorce, the connation isn’t all that pertinent. The Plaintiff and Defendant normally quickly get referred to as their real names because it is very rare that the preschool teacher is going to come in and refer to either the Plaintiff or Defendant as such.
So, does it matter? You decide. In my opinion? No.