Who Is The Petitioner In A Divorce? Your Rights, Responsibilities, And What Happens Next

The petitioner is the spouse who initiates divorce by filing a petition with the court. The other spouse becomes the respondent. Being the petitioner means you control timing, choose jurisdiction, and present evidence first at trial. All 50 states require petitioners meet residency requirements—ranging from six weeks (Idaho, Nevada) to one year (several states)—before filing. Filing first doesn’t guarantee advantages in custody or property division, but offers strategic control over the divorce process.

What Is a Petitioner in a Divorce?

The petitioner (also called plaintiff in some states) formally initiates divorce proceedings by filing a petition or complaint with the court clerk. This legal document requests the court dissolve the marriage and includes proposed terms for property division, custody, support, and other issues. Texas commonly uses “petitioner,” while California and most states use this terminology on all divorce forms.

The respondent (also called defendant) receives the divorce papers and must respond within state-mandated deadlines—typically 20-30 days. In Arizona, respondents have 20 days to file a response, or 30 days if served out-of-state. Colorado gives respondents 21 days (35 days for out-of-state residents).

These roles are procedural labels only. Being the petitioner doesn’t imply fault or moral standing. California is a no-fault state where filing first doesn’t affect outcomes for custody, property division, or support. The petitioner isn’t automatically the “good guy,” and the respondent isn’t the “bad guy.”

How Does Someone Become a Petitioner?

Residency Requirements: All states require petitioners meet specific residency periods before filing. The petitioner or respondent must satisfy these requirements.

State-by-State Residency Requirements:

6 weeks: Idaho, Nevada
60 days: Kansas
90 days: Montana, Missouri, Colorado
6 months: California (plus 3 months county residency), Texas (plus 90 days county residency), Ohio, Oklahoma, Kentucky, Maryland (if grounds occurred out-of-state)
1 year: New York, Connecticut, Rhode Island, Massachusetts

Military exceptions: Servicemembers can file in their legal residence state or where stationed under the Servicemembers Civil Relief Act, regardless of deployment location.

Filing Process:

Prepare petition – Complete divorce forms including grounds, custody requests, property division proposals, support requests
File with court – Submit to clerk’s office with filing fee ($435-$450 in California, varies by state)
Serve respondent – Deliver copies via process server, sheriff, or certified mail per state rules
Proof of service – File sworn statement confirming spouse was properly notified

The petition must state grounds for divorce. No-fault states require only that the marriage is “irretrievably broken” (Colorado) or citing “irreconcilable differences” (California). Fault-based states allow grounds including adultery, cruelty, abandonment, though most divorces proceed on no-fault grounds.

Who Is the Petitioner in a Divorce? Your Rights, Responsibilities, and What Happens Next

Petitioner vs. Respondent: Key Differences

Petitioner Rights and Roles:

Controls when divorce is filed
Chooses jurisdiction and county (if options exist)
Sets initial terms and framework for proceedings
Presents evidence first at trial
May withdraw petition before respondent files answer or counterclaim
Bears initial filing fees and service costs

Respondent Rights and Roles:

Receives petition and summons
Must respond within deadline to avoid default judgment
Can agree to terms or file counter-petition contesting requests
Presents case second at trial (seeing petitioner’s evidence first)
Can request different terms for custody, property, support

Default Judgment: If the respondent doesn’t respond within the deadline, courts may grant a default judgment awarding the petitioner everything requested without respondent input. This makes timely response critical.

The Petitioner’s Rights and Responsibilities

Rights:

Jurisdictional control – File in county of residence; if spouses live in different counties, choose either
Timing control – Decide when to initiate proceedings
First choice of attorney – Consult lawyers before respondent, creating conflicts of interest preventing respondent from using same attorneys
Temporary orders – Request interim custody, support, property use, or restraining orders
Withdrawal – Can dismiss petition before respondent files responsive pleadings

Responsibilities:

Pay filing fees – Court filing fees plus service costs
Serve spouse – Properly deliver divorce papers through legal channels
Prove residency – Demonstrate required state and county residency with documentation (driver’s license, voter registration, tax returns, bank statements)
Disclose assets – Provide complete financial information
Attend hearings – Appear at scheduled court dates

Burden of proof: In fault-based divorces, petitioners must prove grounds (adultery, cruelty). No-fault divorces require no evidence beyond stating the marriage is irretrievably broken.

State-by-State Petitioner Procedures

California (Cal. Fam. Code § 2320):

6 months state residency, 3 months county residency
$435-$450 filing fee
Respondent has 30 days to respond
Forms: Petition for Dissolution (FL-100), Summons (FL-110)

Texas (Texas Family Code Chapter 6):

6 months state residency, 90 days county residency
Petition for Divorce filed with district court
60-day waiting period before final divorce decree
Respondent has 20 days plus next Monday to file answer

Colorado (C.R.S. § 14-10-106):

91 days state residency
Petition for Dissolution of Marriage
91-day waiting period from service to final decree
No-fault only: “irretrievably broken” marriage

Ohio (Ohio Rev. Code § 3105.03):

6 months state residency for contested divorce
Either spouse meets residency for uncontested dissolution
Complaint for Divorce filed with court of common pleas
42-day waiting period for final hearing

New York (NY Dom. Rel. Law § 230):

Variable residency: no minimum to 2 years depending on circumstances
6 months minimum if both spouses live in New York
Petitioner presents case first in litigation
40-day waiting period after service

Missouri (Mo. Stat. § 452.305):

90 days state residency
30-day waiting period from filing to final judgment
No separation period required

Legal Grounds and Why the Petitioner Role Matters

No-Fault Divorce (All 50 States): Every state now permits no-fault divorce. Petitioners need only cite irreconcilable differences, incompatibility, or irretrievable breakdown. No proof of wrongdoing required.

Fault-Based Grounds (Available in Many States):

Adultery
Cruel and inhuman treatment
Abandonment/desertion
Imprisonment
Substance abuse

Strategic Considerations:

Filing first provides procedural advantages but no automatic substantive benefits. Courts decide custody based on children’s best interests, property based on equitable or community property principles, and support based on financial circumstances—regardless of who filed first.

Advantages of Filing First:

Choose venue and timing
Prepare documentation and finances
Secure attorney before conflicts arise
Present narrative first at trial
Request temporary orders immediately

Disadvantages of Filing First:

Bear initial costs
Reveal demands early, allowing respondent to counter
May escalate conflict unintentionally if petition takes aggressive stance
Emotional and financial burden of initiating proceedings

In California, petitioner versus respondent status carries no weight in outcomes. The American Academy of Matrimonial Lawyers confirms filing first doesn’t influence property division, custody awards, or support calculations in no-fault states.

Recent Legal Developments

No-Fault Divorce Universal: All states now offer no-fault divorce. South Carolina became the final state adopting no-fault grounds, eliminating the need for petitioners to prove fault in all jurisdictions.

Reduced Waiting Periods: Several states shortened mandatory waiting periods. Nevada reduced from 6 weeks to immediate filing upon establishing residency in some counties.

Online Filing Systems: Courts nationwide implemented e-filing for divorce petitions. California courts require electronic filing in most counties as of 2024. Texas expanded electronic service options.

Joint Petitions: Multiple states enacted joint petition procedures allowing spouses to file together as co-petitioners rather than petitioner/respondent roles. This streamlines uncontested divorces.

Service by Publication Modifications: Courts tightened requirements for serving spouses by newspaper publication when location unknown, requiring more diligent search efforts before approving alternative service.

Fee Waiver Expansions: States including California, Colorado, and New York expanded income eligibility for filing fee waivers, making divorce accessible to lower-income petitioners.

What This Means for Those Filing for Divorce

Before Filing:

Verify residency requirements – Confirm you meet state and county minimums
Gather documentation – Collect marriage certificate, financial records, property deeds, account statements
Consult attorney – Review petition before filing; errors require starting over
Consider timing – File when financially prepared and emotionally ready
Assess alternatives – Legal separation maintains benefits (insurance, religious considerations) while meeting residency requirements

Filing Strategy:

Joint petition if possible – Uncontested divorces with agreed terms save time and money
Request temporary orders – Secure interim custody, support, property possession if needed
Complete all forms – Include required notices, financial statements, parenting plans
Proper service – Use authorized process server or sheriff; retain proof of service

After Filing:

Respondent has limited time – They must answer within 20-35 days depending on state
Negotiate settlement – Most cases settle without trial
Attend mediation – Courts often require mediation attempts
Prepare for trial – If contested, petitioner presents case first

Cost Considerations:

Filing fees: $200-$450
Attorney fees: $5,000-$50,000+ depending on complexity
Service costs: $50-$200
Court costs: Additional fees for hearings, motions

Common Mistakes:

Filing without meeting residency requirements
Incomplete financial disclosures
Improper service of papers
Missing response deadlines
Failing to request temporary orders when needed

Frequently Asked Questions

Does filing first give me an advantage in custody?

No. Courts determine custody based solely on children’s best interests regardless of who filed first. Factors include parent-child relationships, stability, ability to provide care, and children’s preferences (if age-appropriate). Texas Family Code and all state custody statutes make no distinction between petitioner and respondent for custody purposes. Filing first may allow you to request temporary custody orders, but final custody depends entirely on best interests analysis.

Can I change from petitioner to respondent or vice versa?

No. Your role is fixed when the first petition is filed. However, respondents can file counter-petitions asserting their own grounds and requests, effectively making them active participants rather than passive responders. Once both parties have filed pleadings, the procedural distinction becomes less significant.

What happens if I file but my spouse files first in a different state?

The first-filed case generally takes precedence. Courts apply the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) for custody matters, giving jurisdiction to the child’s “home state” where they’ve lived six consecutive months. For property and other issues, the first court to obtain jurisdiction typically maintains it. You may need to dismiss your later-filed case or consolidate proceedings.

Do I need a lawyer to be the petitioner?

No state requires attorneys for divorce. You can file pro se (representing yourself). However, attorneys significantly benefit petitioners by: ensuring proper form completion, meeting filing deadlines, identifying all marital assets, calculating accurate support, negotiating settlements, and presenting trial evidence. Complex cases involving businesses, significant assets, or contested custody strongly warrant attorney representation.

Can the respondent become the petitioner later?

Not technically, but respondents can file counter-petitions asserting their own divorce grounds and relief requests. If the petitioner withdraws their petition before the respondent responds, the respondent could then file as the new petitioner. Otherwise, roles remain fixed throughout the case.

How long does the divorce take after filing the petition?

Minimum timeframes: California requires 6 months from service to final judgment. Texas mandates 60 days from filing. Colorado requires 91 days from service. Uncontested divorces may resolve in 2-6 months. Contested divorces average 12-18 months nationally but can extend 2-3 years with complex property, custody disputes, or appeals.

What if I can’t afford the filing fee?

All states provide fee waiver procedures for indigent petitioners. File an Application for Waiver of Court Fees (California Form FW-001) or equivalent state form demonstrating income below guidelines. Courts may waive fees entirely or allow payment plans. Public benefits receipt (SSI, food stamps, Medicaid) typically qualifies for automatic waivers.

Citations:

Cal. Fam. Code § 2320 (residency requirements)
Texas Family Code § 6.301 (petition requirements)
Ohio Rev. Code § 3105.03 (residency and grounds)
Colo. Rev. Stat. § 14-10-106 (residency)
Mo. Stat. § 452.305 (residency)
Servicemembers Civil Relief Act, 50 U.S.C. § 3931
Uniform Child Custody Jurisdiction and Enforcement Act

This article provides general legal information and should not be construed as legal advice. Divorce laws vary significantly by jurisdiction and individual circumstances. Consult a qualified family law attorney in your state for advice specific to your situation.

About the Author

Sarah Klein, JD, is a former family law attorney with over a decade of courtroom and mediation experience. She has represented clients in divorce, custody cases, adoption, Alimony, and domestic violence cases across multiple U.S. jurisdictions.
At All About Lawyer, Sarah now uses her deep legal background to create easy-to-understand guides that help families navigate the legal system with clarity and confidence.
Every article is based on her real-world legal experience and reviewed to reflect current laws.
Read more about Sarah

Who Is the Petitioner in a Divorce? Your Rights, Responsibilities, and What Happens Next