In a Divorce – Does it Matter if I’m the Plaintiff or Defendant

For New York Divorce cases, there will be a Plaintiff and a Defendant (in other States, they may be called a Petitioner and a Respondent). Does it matter if you are the Plaintiff or the Defendant? The short answer is that it really doesn’t matter.

Unlike most every other type of case, in a divorce, whether you are the Plaintiff or the Defendant, has virtually no effect on the ultimate result of the divorce. This is because New York, like every other State is a “no-fault divorce State.” Therefore, you do not have to “prove” that you are entitled to a divorce. So, you do not have to meet your burden of proof to show that you are entitled to a divorce. In contrast, in other types of cases, the Plaintiff has to establish that they “win” by a preponderance of the evidence, clear and convincing evidence or in a criminal case, by showing the Defendant is guilty beyond a reasonable doubt.

In a divorce case, no one is deemed guilty and no one is deemed to be “at fault.” This is why it really doesn’t matter which person is the Plaintiff and which person is the Defendant.

In a divorce case, the Plaintiff is the person who filed for the divorce. If there is a trial, the Plaintiff will be the person who has to present their witnesses first. After the Plaintiff presents all their witnesses, then the Defendant will then bring forth their witnesses.

However, there are some small differences in being the Plaintiff compared to being the Defendant. The Plaintiff will pay the fee to file the Summons ($210) and typically will have to file the fees for getting a Judge assigned ($95) and a document called the Note of Issue ($30). In general, the Plaintiff is also responsible for making sure all the documents are filed to finish the divorce process. In addition, the Plaintiff will have to make sure that the Defendant is properly served and will usually hire a process server to effectuate the service.

The Court and the Judge do not give an advantage or disadvantage to whether you are the Plaintiff or the Defendant.

There are many other issues in a divorce, and they can be complicated. You need an expert attorney who can guide you through the process. David Badanes, Esq. and the Badanes Law Office, P.C. have represented countless clients and have achieved excellent results. Contact David Badanes and the Badanes Law Office at 631-239-1702, email at or visit us on Facebook to get important legal news, tips and articles: