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.
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.
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.
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.