Who Is the Plaintiff in a Divorce and Does It Matter Who Files First in Massachusetts?
In Massachusetts divorce proceedings, the plaintiff is the spouse who initiates the divorce by filing the complaint for divorce with the Probate and Family Court. The other spouse, who responds to the complaint, is designated as the defendant. While these terms may sound adversarial, they are simply legal designations that indicate which party started the legal process. At Weberg Law, clients frequently ask whether there are advantages to being the plaintiff in a divorce case, and the answer requires understanding several nuanced aspects of Massachusetts divorce law.
Who Is the Plaintiff in a Massachusetts Divorce?
The plaintiff in a divorce case is the spouse who files the initial complaint for divorce. This person takes the first legal step in the divorce process by completing and filing the necessary paperwork with the court. In Massachusetts, this typically involves filing a “Complaint for Divorce” form (either a 1A form for uncontested divorces where both parties agree, or a 1B form for contested divorces based on irretrievable breakdown of the marriage).
Once the complaint is filed, the plaintiff must ensure that the defendant (the other spouse) is properly served with the divorce papers, typically through a sheriff or constable. The defendant then has the opportunity to file an answer and potentially a counterclaim for divorce.
Does It Matter Who Files First in Massachusetts?
Whether it matters who files first depends on several factors specific to your situation. In some cases, being the plaintiff may offer certain advantages, while in others, the distinction makes little practical difference. Here are the key considerations:
Potential Advantages of Filing First
1. Establishing the Length of Marriage for Alimony Purposes
One significant consideration involves the legal definition of the “length of marriage” for alimony purposes. Under Massachusetts General Laws Chapter 208, Section 48, the length of marriage is defined as “the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support.”
This definition is crucial because the duration of alimony in Massachusetts is directly tied to the length of the marriage. For example:
- For marriages less than 5 years, alimony generally cannot exceed 50% of the number of months of the marriage
- For marriages 5-10 years, alimony cannot exceed 60% of the number of months
- For marriages 10-15 years, alimony cannot exceed 70% of the number of months
- For marriages 15-20 years, alimony cannot exceed 80% of the number of months
- For marriages over 20 years, alimony may be indefinite
By filing first and controlling when service occurs, a spouse can potentially influence this calculation, which could be significant in cases where the marriage is close to crossing one of these thresholds.
2. Timing Control
Filing first gives you some control over the timing of the divorce process. This can be particularly important if you anticipate that your spouse might attempt to hide assets or if you need to secure temporary orders for support, custody, or exclusive use of the marital home.
When Being First May Not Matter
Despite these potential advantages, in many cases, being the first to file has minimal impact on the outcome of the divorce. Here’s why:
1. No Impact on Property Division
Massachusetts is an equitable distribution state, meaning that marital property is divided fairly (though not necessarily equally) regardless of who files for divorce. The factors considered in property division under Massachusetts General Laws Chapter 208, Section 34 do not include which spouse initiated the divorce.
2. No Presumption Regarding Custody
Being the plaintiff does not create any presumption regarding child custody or parenting time. Massachusetts courts determine custody based on the best interests of the child, not on which parent filed first.
3. Counterclaims Neutralize Many Advantages
If the defendant files a counterclaim for divorce, many of the procedural advantages of being the plaintiff are neutralized. Both parties will have the opportunity to present their cases and request relief from the court.
4. No-Fault Divorce Minimizes Blame
Most divorces in Massachusetts are filed under the “no-fault” irretrievable breakdown of marriage standard. In Massachusetts practice it is the unwritten rule among domestic relations practitioners that no-fault grounds are the strongly preferred method of seeking a divorce. This approach minimizes the significance of who initiated the divorce.
Practical Steps Regardless of Who Files First
Whether you’re the plaintiff or defendant in a divorce case, certain practical steps are essential:
1. Gather Financial Information
Collect comprehensive information about your marital finances, including:
- Bank and investment account statements
- Retirement account information
- Real estate documents
- Tax returns
- Income information
- Debt documentation
2. Consult with an Attorney
Before filing or responding to a divorce complaint, consult with an experienced family law attorney who can advise you on the specific advantages or disadvantages in your situation.
3. Consider Alternative Dispute Resolution
Regardless of who files first, consider whether mediation or collaborative divorce might be appropriate for your situation. These approaches can reduce conflict and cost while giving both parties more control over the outcome.
4. Prepare for Mandatory Disclosures
Under Supplemental Probate Court Rule 410, both parties must exchange mandatory financial disclosures within 45 days of service of the summons. Being prepared with this information, whether you’re the plaintiff or defendant, will help your case proceed more smoothly.
Conclusion
While there can be certain advantages to filing for divorce first in Massachusetts, these advantages are often procedural rather than substantive. The ultimate outcome of your divorce will depend more on the facts of your case, the applicable law, and the quality of your legal representation than on whether you were the plaintiff or defendant.
If you’re considering divorce, it’s important to consult with an experienced family law attorney who can help you understand the potential advantages and disadvantages of filing first in your specific situation. By taking a thoughtful, strategic approach to the timing and manner of your divorce filing, you can position yourself for the best possible outcome regardless of whether you’re the plaintiff or defendant.