The first step in the divorce process is submitting a complaint to the court. Either spouse can do this. But does it matter who files first? In terms of deciding on critical issues like property division or child custody, it doesn’t. These are determined based on the spouse’s agreements, laws, and other factors. What the filing order will affect are each of the spouse’s obligations. For example, the plaintiff must meet residency requirements and include specific information on the complaint. The defendant must review the paperwork they receive and can file a response or counterclaim.
If you are filing for a divorce or your spouse has initiated an action, retain legal services for assistance with your case. Schedule a consultation with our Dayton team at L. Patrick Mulligan & Associates, LLC by calling (937) 685-7006 or submitting an online contact form today.
The Plaintiff’s Obligation
The spouse who initially submits the complaint for a divorce is called the plaintiff. As the initial filer, they must meet the residency requirements. They must have been a resident of Ohio for at least 6 months and a resident of the county they’re filing in for at least 90 days before initiating the action.
Additionally, the plaintiff must include complete and accurate information on the complaint concerning:
- The date of the marriage
- The county of the marriage
- Whether either spouse is currently pregnant
- Whether either spouse is an active member of the U.S. Armed Forces
- The names and birth dates of children born or adopted during the marriage
- The property owned
The filing spouse must also specify the reason they are seeking a divorce.
They may indicate fault-based grounds, which can include:
- Either party having another spouse during the marriage
- The defendant being absent for at least 1 year
- The defendant having committed adultery
- The defendant having engaged in extreme cruelty
- The defendant having made fraudulent contact
- The defendant neglecting their duty
- The defendant being habitually drunk
- The defendant having been imprisoned when the complainant was filed
When the plaintiff bases a divorce on fault, they must prove the grounds they are claiming.
The plaintiff can also initiate an action on no-fault grounds. These include incompatibility and living separate for at least 1 year. The plaintiff does not have to prove no-fault grounds. However, the defendant can object to them.
After the plaintiff has completed the required forms, they must submit them the court and pay a filing fee. They must also have their spouse served with a copy, which notifies the defendant that a divorce has been requested.
The Defendant’s Obligations
The spouse served with copies of the divorce papers is called the defendant. Their legal obligations are slightly different from the plaintiff’s.
After receiving the divorce documents, they must review them to see what the plaintiff is claiming and what orders they are asking the court for. If the defendant disagrees with anything in the complaint, they can file a response within 14 days of being served.
Alternatively, the defendant can submit a counterclaim, indicating their wants in the divorce. Filing a counterclaim requires that they meet the 6-month residency requirement. They may also have to pay a filing fee.
If the defendant agrees with the plaintiff’s claims, the defendant has 28 days to file their answer.
The defendant is not required to submit a response to the court. They can choose to do nothing. However, the court will assume that the defendant is okay with what the plaintiff is asking for and may grant their requests, provided that they are reasonable, without the defendant’s input.
How Divorce-Related Matters Are Decided
Filing for a divorce first generally won’t affect how the case resolves. For instance, the court will decide property division based on the equitable distribution doctrine. This means that the spouses will receive fair shares of marital assets and debts.
The court may not consider who filed first, but it may take into account the following:
- The marriage length,
- Tax consequences,
- Retirement benefits, and
- Other relevant factors.
Likewise, matters such as child custody will be determined based on what’s in the children's best interest, not on which spouse initiated the action. Although grounds, such as the defendant's cruelty, might affect the decision, the claim isn’t automatically accepted because one spouse filed first. The court will examine the entirety of the situation and hear both parties’ sides.
Schedule a Consultation Today
Whether you or your spouse file for a divorce, you each have legal rights at the initial stages and throughout the process. To protect your best interests, turn to a family law attorney who can give you advice and guidance at every step.
Our team at L. Patrick Mulligan & Associates, LLC provides legal counsel in Dayton. Please contact us at (937) 685-7006 today.