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.

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.

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.

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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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References

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What Is a Counterclaim for Divorce?

When your spouse serves you with divorce papers, the worst thing you can do is nothing. If you don't respond, you run the risk of having the judge grant your spouse everything she asked for in her petition or complaint for divorce. You could find that you've lost custody, or a fair division of your marital property. You have a choice regarding how to answer your spouse's divorce papers, and a counterclaim offers you the most protection.

What Can You Cite in a Divorce Besides Irreconcilable Differences?

Before a court will grant you a divorce, you've got to present a valid reason why your marriage should end. This reason is considered your "grounds" for divorce. All states recognize some version of no-fault grounds for divorce, too. In these instances, you do not have to blame your spouse for wrongdoing in order to terminate your marriage. Irreconcilable differences is a common no-fault ground, but it’s not available in all states so you may have to cite something else instead. The majority of states offer fault grounds for divorce while the remaining states and the District of Columbia are "pure" no-fault jurisdictions.

Divorce Based on Adultery in Illinois

If your spouse has strayed, you might have good reasons for wanting to file for divorce on grounds of adultery -- but doing so might not result in more than some personal satisfaction. Illinois recognizes adultery as divorce grounds, but you could probably end your marriage much more quickly and economically if you filed on the state's no-fault grounds of irreconcilable differences instead.

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