Myth Buster: the Defendant is at a disadvantage!

Myth Buster: the Defendant is at a disadvantage!
Family Court Myth-Buster Series: Part 3
What to Expect if you are the Plaintiff or if you are the Defendant

A frequently asked question is “does it matter who files first in Family Court?” The answer to this question is “it depends on the situation.”

The Plaintiff is the party that begins the litigation. The Defendant is the party that responds to the Plaintiff’s complaint. However, the Defendant can also counterclaim and ask the Court for their own requested relief. The Plaintiff typically presents his or her case first at the trial of a case. However, Family Court has great discretion in allowing witnesses to be taken out of order. I have been present at many trials where a Defendant’s witnesses testified first due to scheduling concerns or time constraints. If all things are going in order, I actually prefer to be the Defendant in a contested hearing. As the Defendant, I get to hear all the witnesses before presenting my witnesses. The Plaintiff does have the opportunity to call rebuttal witnesses at the end of the Defendant’s case.

It is preferable to be the Plaintiff in cases involving the custody of children, especially where the other parent would not take any action if the case were not brought by the Plaintiff. In such situations, a Defendant who replies with “the Plaintiff has mistreated or abused the children” is not likely to gain any traction because if their assertion is true, the Defendant has failed to protect the children by their inaction.

In cases that are filed virtually simultaneously, there is not a benefit to being the Plaintiff or a detriment to being the Defendant, in my opinion.  These cases are typically consolidated.  Attorneys often agree to forego responsive pleadings in an effort save time and money for clients.

If you are seeking to be a Plaintiff or are already a Defendant, and need legal help with a Family Court case in Anderson County, South Carolina, you can reach me by email at



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