Does It Matter Who Files First in Divorce Proceedings? Massachusetts Family Law Explained

November 3, 2023 O'Connor Family Law Divorce

Are you contemplating a divorce in Massachusetts and wondering whether it matters who files first? It’s a common question that often arises in divorce proceedings. At O’Connor Family Law, we understand that every situation is unique, and the decision to file for divorce can have implications for your case. In this blog post, we’ll provide insights into whether it matters who initiates the divorce process in Massachusetts.


We know you’re busy so we’ll cut to the chase: Does it matter who files for divorce first?

Our answer: It depends on your specific circumstances. There are a few factors you may want to consider when deciding whether to file as the plaintiff (the one initiating the divorce) or the defendant (the one responding to the divorce petition). Typically, I don’t think it matters so much. And sometimes I actually like being on the defending side, because then you get to hear what the other side says first but we’ll get into that in a minute. Here are the biggest considerations I would point out to anyone wondering whether they should initiate divorce proceedings…


From a financial perspective, there are benefits to being the defendant. When you file for divorce as the plaintiff, you are responsible for paying the filing fee, which can amount to approximately $300. By choosing to be the defendant, you can save this cost as the plaintiff bears the financial burden. Of course, that doesn’t mean you’ll necessarily escape further fees and the judge could make certain determinations on such fees but in general, not initiating could save you a couple of Benjamins.


One significant advantage of being the defendant is that you get to hear the plaintiff’s arguments first. This can provide valuable insights into their position and allow you and your lawyer to tailor your response accordingly. During pretrial proceedings, you have the opportunity to present your case in response to the plaintiff’s claims. You can address any discrepancies or differences in your positions, potentially helping you to make a compelling case.


Effective preparation is key in divorce proceedings. It’s crucial for your attorney to be well-informed about your situation to anticipate any potential challenges. To ensure a seamless legal process, be transparent with your attorney. Share all relevant information and details about your marriage, assets, and concerns. This allows your attorney to be fully prepared to handle any unexpected developments during the proceedings.


In certain situations, being the plaintiff can be advantageous, especially if you need swift action from the court. For instance, if your spouse has abruptly left the family home and is not fulfilling financial responsibilities, filing as the plaintiff can expedite the legal process. It allows you to seek court orders for child support, spousal support, and custody arrangements promptly. If you can’t or don’t want to wait, then you might want to get the ball rolling yourself.


As a divorce attorney, I like when the other side goes first and I can hear exactly what their arguments are, because then I get to make the presentation of your Honor, we just heard what they had to say. However, our side is vastly different. So let me explain to you why and not necessarily get into the back and forth, but that way, if there’s anything that might come up that I wasn’t initially prepared for, which typically, you want to always be prepared when you walk into court with everything that could be thrown at you. And I’ll caveat that by saying, this is why you don’t lie to your attorney and you tell your attorney everything, because the last thing I want is to be in court and suddenly get thrown something that I wasn’t prepared for.

If you go first and then the other side has things that you weren’t prepared for and you didn’t address, then you kind of have to cover your tracks and ask basically for a chance to readdress what was just said, which the judge will typically do but it’s easier to address the first time around.

While I do like being the defendant, ultimately I don’t think it matters all too much. I think where it does matter most to be the plaintiff is if you need to get in court very quickly. If you’re about to go through a divorce situation and let’s say your spouse, whether it’s a man or a woman, let’s say you guys are living together, you have the kids, your spouse just ups and moves because they’re cheating on you.

And they decide they want to go with their new person and then they just don’t pay anything. Now maybe you’re stuck with all the bills, you’re not getting child support, and you might need to get into court. In those types of situations. You probably do want to be the plaintiff because that gets the case moving.

If you just sit back and wait for the other side to go ahead and file first, you’re probably just going to be waiting. If you need to be in court and you need to get the ball rolling, be the plaintiff. Otherwise, let the other side file. Let them spend their money.

If your family law case does go to trial, the burden to have everything ready actually lies with the plaintiff. So there’s a lot more work on the attorney side if you’re on the plaintiff and you’ve done the filing first than if you’re the defendant.

Seek Support

In Massachusetts, the decision of whether to file for divorce as the plaintiff or wait and see if your spouse files first depends on your unique circumstances. While there may be reasons to prefer either side, you’ll want to speak with an experienced family law attorney who can assess your situation and provide guidance on your own unique circumstances.

At O’Connor Family Law, we are here to support you through the divorce process, regardless of who initiates proceedings. Our dedicated family law attorneys have the knowledge and compassion to help you navigate the world of Massachusetts family law, ensuring your rights and interests are protected.

If you have questions or need assistance with your divorce case, we’re just a call away. Contact O’Connor Family Law at 774-703-3755 to speak to a member of our team today. Your future matters, and we’re here to guide you through it.