THE NEED TO PLEAD: Should a Counterclaim be filed?

When a prospective client in a divorce matter comes in, often they have already been served with a Complaint for Divorce that has been filed by their spouse.  Beyond discussing the substantive issues of their case, they will inquire about the Complaint itself, what it means, and the need to respond to it.  Back in the “good old days”, unless the parties had already been separated for 18 months, a Complaint for Divorce had to allege some sort of “fault” as the grounds for the divorce, i.e. extreme cruelty, adultery or desertion being among the most common. Besides wanting to deny these allegations of wrongdoing, more often than not the responding party would claim that their spouse was equally, if not more, at fault for the breakdown of the marriage. Hence, beyond answering the Complaint itself, the party would want to respond with their own Counterclaim for Divorce.  Regardless of what impact, if any, it had on a Judge’s decision-making on the substantive issues, most parties did not want to be viewed as the wrongdoer or a bad person who may have caused the breakup of this marriage.

In 2007,  N.J.S.A. 2A: 34-2 was amended to include “irreconcilable differences” as a no-fault grounds for divorce in New Jersey.  Since that time, a substantial percentage of the divorces filed and granted in this State have been based on irreconcilable differences. Given that the Complaint which may have been served upon a party will usually only assert irreconcilable differences as the grounds for divorce, many clients will ask whether it is even necessary for them to file a Counterclaim for Divorce.  More often than not, my answer will be “yes”, even though the Court Rules suggest that a failure to Counterclaim would not bar such a cause of action, that pleadings should be liberally amended, and that even an answer or general appearance would allow a party to be heard on issues incidental to the proceedings.  R. 5:4-2; R.5:4-3.  Even if we are just dealing with irreconcilable differences grounds, I still believe that there is the “Need to Plead”.

There are some cases where a need to file a Counterclaim for Divorce is self-evident.  The spouse may have been physically and/or emotionally abused, suffering damages as a result, which may give rise to a claim for marital tort.  The entire controversy doctrine generally mandates that such causes of action be brought in a single proceeding.  The other spouse may have been engaged in some sort of nefarious activity, whether directly or with the assistance of others, designed to diminish the marital estate or to adversely effect the spouse’s marital rights, and which may give rise to causes of action based on fraud or other wrongful conduct.  The parties may have lived together for a period of time prior to marriage, during which assets were acquired, children born, careers put on hold, etc and which may give rise to certain “equitable” claims to address these circumstances.

What if none of these types of situations exist and we are just talking about an action for divorce?  In some instances, a client comes to you who truly feels that they were the aggrieved or wronged spouse.  They may recount how their spouse engaged in some horrible, if not abusive, behavior towards them (although not rising to the level of a marital tort), or had cheated on them.  They may relate instances where their spouse acted inappropriately towards the children or was less than a stellar parent.  While the law suggests that “fault” grounds should have little or no impact upon a court’s determination of the substantive of issues in a divorce case, if the other spouse’s actions are particularly egregious, consideration should be given to alleging them in a Counterclaim.  Besides giving everyone notice, it avoids the possibility of being confronted with claims of waiver or ill-motive if they are brought up later on.  Also, Judges are human and may be less inclined to look favorably upon someone who acted wrongly when making credibility or discretionary determinations, particularly when it comes to matters of custody or alimony.  Even when these considerations don’t exist, some spouses may insist on asserting the Counterclaim on “fault” grounds on principle, because they don’t want their spouse to get away with what they did, or simply want to use this pleading as a catharsis.  In these instances, I will try to have the client weigh the emotional benefits of doing so against the risks of potentially inflaming the case and poisoning the atmosphere for resolution that raising such allegations may bring.

Assuming that none of these considerations exists, why should it make a difference if a Counterclaim on the grounds of irreconcilable differences is filed or not?  Assuming the client wants to be divorced, in the absence of a Counterclaim, there is the risk that the other spouse could try to dismiss their Complaint and if successful, there would be no divorce case pending.  While this dismissal could only be effectuated by Stipulation or Court Order after responsive pleadings are filed, this would necessitate dealing with motion practice and the preparation of a Counterclaim anyway in order to preserve the divorce action and any previous proceedings, Orders, et cetera that may have arisen therefrom. The added time and expense could have been avoided if a Counterclaim had been filed in the first instance. If representing the dependent spouse in particular, there are other considerations warranting the filing of a Counterclaim rather than an Answer or Appearance.  If the Complaint was filed by the non-dependent spouse (generally the husband), more likely than not it would contain only allegations and prayers for relief touching upon equitable distribution and perhaps custody and parenting time.  Would the filing of an Answer alone, even if the “Wherefore” clause included requests such as alimony or child support, suffice in protecting those claims or allowing that party to obtain such relief if not affirmatively pled?  The wording of R. 5:4-3 might suggest yes, but why leave to chance to the possibility that the court may not allow those claims should opposing counsel raise such arguments?  New Jersey is a notice pleading state, and except for certain specific actions, a pleading must be adequate enough and allege sufficient facts so as to not only give rise to a cause of action, but to fairly apprise the adverse party of the claims and issues raised.  See R. 4:5-2, and its Comments.  I submit that if a client will be seeking additional relief not specifically raised in the initial Complaint, that the safest course is to raise these as affirmative claims in a Counterclaim, and thereby avoiding such potential challenges. Asserting a Counterclaim on the grounds of irreconcilable differences should not inflame the case.  It should not impact or delay the court’s handling or disposition of the case. There is little or no difference in the filing fees charged.  There are few circumstances and little reason why a Counterclaim should not be filed. If in doubt, you can’t lose if you follow the “Need to Plead”.