In my class at Savannah Law School we cover both substantive family topics (policies behind child support, constitutional analysis of family law statutes, grounds for divorce) as well as some of the underlying aspects of family law cases that make family law so, well, human.
One of those human aspects of family law is the concept of initiator vs. resistor. In few cases are both parties equally ready for a divorce at the same time. Rather, in many situations, one person has decided the marriage is over while the other clings on to hope. The spouse who has decided divorce is inevitable is the initiator. The spouse who doesn’t want the divorce is the resistor.
The typical guess is that in these situations, the initiator files for divorce (the plaintiff) and the resistor unwillingly goes along (named as the defendant). This can often be true, but is not always. Often, the resistor understands that the initiator has made up her mind and rather than sitting on his hands, goes and consults with a lawyer, retains the lawyer, and is the party filing for divorce, while the initiator, decided the marriage is over, has busied themselves with planning for life post-divorce, whether it be stashing money away or starting a new relationship.
What difference does it make if someone is the Plaintiff or not in a divorce? As a lawyer, I prefer to be on the Plaintiff’s side. See, lawyers like to talk. We like to hear ourselves talk. Don’t believe me? Go sit on a domestic calendar. The lawyers will always estimate the time needed for their case to be 30 minutes and then an hour later they’re done. The Plaintiff’s lawyer gets to give the first opening statement at trial.
That’s the benefit of primacy. The first thing the judge or jury hears about the case is from the Plaintiff’s lawyer’s mouth. It’s their st01y. At the close of evidence, the Plaintiff’s lawyer is allowed to give the final closing argument if he so chooses.
That’s the benefit of recency. It’s the last words the judge or jury hears before they deliberate and give their decision. The Plaintiff’s lawyer gets the advantage of both primacy and recency; a benefit all good trial lawyers will jump at.
So if you’re a resistor, it doesn’t mean you sit and wait. You can be active in defending your rights. You can be the first to file. Many a couple has reconciled and dismissed their divorce case mid-stream. But by getting out in front of the issue, you provide yourself great leverage from a trial standpoint to ensuring you are able to achieve the best result possible, even if the ultimate result isn’t the one you choose.