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We’ve signed our Agreement… What is Next Part 2

We’ve signed our Agreement… What is Next? II

II Plaintiff v Defendant — what is in a name?

One decision that must be made before preparing the pleadings is which party will be named as plaintiff and which as defendant. In a mediated, uncontested divorce, the words plaintiff and defendant are of virtually no consequence. That is, there is neither advantage nor disadvantage to either assignment. Notwithstanding, these unfortunate terms are so loaded with cultural and linguistic biases, some, I expect, held in our collective unconscious, that it is worth saying something about them. My hope is to disabuse my divorcing friends of stigma that causes unnecessary discomfort or insult.

In both New York and New Jersey (and most of our United States), we are limited to certain terms that are both archaic and unpleasant. Legally, the terms are necessary to distinguish one party from the other, to assign one party the role of commencing the action, and the other the role of responding to the action; to clearly designate who signs and submits which document when, and so forth. If you consider the pleadings to be a formal, specific “correspondence” between two participants, it makes sense that the court needs a consistent means of identifying each party. Legally, the term plaintiff simply means the one who initiates the action, while defendant means the one who responds. 

The term “plaintiff” has ancient roots and implicit meanings and associations. Plaintiff may imply a kvetchy nudnick — someone who can't keep still or go with the flow. Plaintiff may also imply the one who wants the divorce or gave up on the marriage. Defendant carries implications of being broken up with or guilty of some offense. It implies that at least one person has found fault with you, is calling you out, and you have to defend yourself against attack. The defendant perhaps sounds like the wrongdoer who failed the marriage, did not want the divorce, or is somehow the weaker party. Defendant can indicate having no choice in the matter — being acted upon.

In a mediated divorce, the plaintiff and the defendant are equally empowered and equally engaged in a transparent process.

In a mediated divorce, this never needs to be the case. In a mediated divorce, the plaintiff and the defendant are equally empowered and equally engaged in a transparent process. (Both are equally irritated, bored, and sometimes perplexed.) Together, by mutual consent, the parties decide with their mediator who will be plaintiff and defendant.

Often it is a practical decision. For example, a couple may decide that the spouse who is better at managing paperwork or has access to a scanner will be the plaintiff. Or the spouse, who travels for work and is often unable to check email for incoming paperwork, will be the defendant. In our process, the parties, regardless of how they are identified for purposes of pleadings, are treated equally. Both parties prepare documents, receive and review everything at the same time. 

Best to think of taking the role of plaintiff or defendant somewhat like choosing your meeple or token in a board game, such as Monopoly. In order to comply with the rules and make any sense of the universe you are entering, one player chooses the hat, and the other the thimble — it makes no difference apart from consistently identifying each party correctly throughout the papers and process. While I appreciate that being the battleship or iron has various connotations for individuals, I ask my clients to take the terms plaintiff and defendant lightly, as one takes a number at a deli and refrains from delving into the numerological significance of the number drawn.

As our species and governing laws evolve, perhaps over the next five hundred years or so, we will perhaps come to use friendlier words like “petitioner,” “respondent” (terms used in some appellate courts) or “friend one,” “friend two” (terms never used, and available for use!) Until that far-flung time, we do best to take these words non-literally, to be worn as ill but loose fitting garments, borrowed for a brief period and singular purpose. 


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