New York Laws on a Divorce Adultery Countersuit

By Beverly Bird

New York has recognized no-fault grounds for divorce since 2010, but this doesn’t prevent a spouse from filing on fault grounds instead. A spouse can file on grounds that her partner committed adultery, but the state doesn’t make this particularly easy. As a holdover from the days when spouses had to prove misconduct to receive a divorce, New York’s laws require somewhat stringent proof of adultery, whether you allege it in a complaint or in a countersuit.

New York has recognized no-fault grounds for divorce since 2010, but this doesn’t prevent a spouse from filing on fault grounds instead. A spouse can file on grounds that her partner committed adultery, but the state doesn’t make this particularly easy. As a holdover from the days when spouses had to prove misconduct to receive a divorce, New York’s laws require somewhat stringent proof of adultery, whether you allege it in a complaint or in a countersuit.

Nature of a Counterclaim

When your spouse files for divorce in New York, you can respond in one of two ways. You can simply address the statements contained in her complaint by denying them, admitting them, or claiming no knowledge of them. This type of response is a “verified answer.” Alternatively, you can essentially file your own complaint for divorce, stating your version of the facts regarding the issues in dispute, alleging your own grounds and asking for your own relief – what you want the court to award you when granting the divorce, such as custody or a share of marital property. Your complaint is a “counterclaim for divorce,” sometimes referred to as a countersuit. It carries the same legal weight and serves the same legal purpose as a complaint, but it bears a different name because the complaint was the original document that opened the litigation. A counterclaim usually includes a verified answer, so it can also address your spouse’s allegations.

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Alleging Adultery

If your spouse has committed adultery, you can file your counterclaim using this ground. It doesn’t matter if she has accused you of the same thing, because your counterclaim stands on its own in New York; it’s not dependent on anything your spouse said in her pleading. If you allege adultery in your counterclaim, your spouse has the right to file an answer to it and deny your allegations, just as you were able to do so in answering her complaint.

Proving Adultery

Telling the court in your counterclaim that your spouse has committed adultery is not sufficient to have your divorce granted on these grounds. You must prove it as well, and this can be a bit tricky in New York. Circumstantial evidence is acceptable, but it must be three-pronged. You have to show that your spouse intended to commit adultery, took deliberate steps to do so and had the inclination to stray. You must also prove that she had the opportunity to do so, such as she was alone in a location with her paramour for extended hours where an adulterous act might have taken place. You have this burden of proof even if your spouse admits to committing adultery or doesn't deny it. If you want to use testimony or evidence from a private investigator, you’ll need an additional witness to substantiate his testimony. The fact that you paid the investigator to unearth proof indicates to the court that his evidence might be less than reliable, so you’ll have to back it up with another source.

Affirmative Defenses

If your spouse has accused you of adultery in her complaint, you can include “affirmative defenses” in the answer segment of your counterclaim. Affirmative defenses don’t necessarily deny that you committed adultery, although you can do that as well. They state reasons why your spouse can’t use your adultery as grounds because of some other legal circumstance. For example, she must file for divorce within five years of learning of your infidelity to use it as grounds. Therefore, if you committed adultery six years ago, your affirmative defense is that she waited too long to make such a legal claim.

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Defense of Justification in Divorce

References

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New York State Divorce Laws When a Spouse Has an Affair

Until 1967, adultery was the only grounds for divorce recognized by New York. The state’s code defines it as sexual intercourse between an individual and someone other than her spouse after their date of marriage, so an affair qualifies if the relationship was sexually consummated. However, the rest of New York’s laws pertaining to this divorce ground are not quite as simple.

The Disadvantages of Pleading No Contest to Adultery

In the context of divorce law, you can "plead no contest" by abstaining from defending yourself against the allegations contained in your spouse’s complaint or petition for divorce. You might do this at trial or in depositions by invoking your Fifth Amendment right against incriminating yourself, depending on your state’s laws. Generally, adultery would have to be a criminal offense in your jurisdiction for your Fifth Amendment right to apply. Alternatively, you might simply decide not to deny your spouse’s adultery grounds when you file an answer to her complaint. In either case, your decision not to challenge her grounds can have a negative effect on your divorce.

Tennessee Divorce Laws on Adultery

You don’t have to prove marital misconduct to receive a divorce in Tennessee; the state offers the no-fault ground of irreconcilable differences. However, its statutes require that you and your spouse live apart for two years before you qualify for a no-fault divorce. Fault grounds don’t share the same restriction, which can make them an attractive option if your spouse has done something to end the marriage, such as committing adultery.

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