Divorce guarantees you will have your day in court if you really want it. If you don't reach a settlement with your spouse, a judge will eventually hear your case and make decisions regarding property, custody and support. If your spouse alleges you're guilty of misconduct that ended the marriage, you can defend yourself if you go to trial. If you file the proper documents, you can also countersue your spouse for bad or abusive behavior.
Fault in No-Fault States
In approximately 18 states, there are no available fault grounds for divorce. If you live in one of these jurisdictions, your spouse can't accuse you of marital misconduct in his complaint for divorce, and you can't countersue him on grounds of abusive conduct. Grounds only relate to the reason for your divorce, however. Even in these states, you can often introduce marital misconduct at trial if it will influence the court's decision regarding property division, support or custody.
Filing a Counterclaim
You can countersue your spouse by filing a counterclaim for divorce. After he serves you with a copy of his divorce complaint or petition, you must file a response with the court, usually within about a month. You can file an answer, addressing the issues your spouse raised in his documents, or you can file a counterclaim, raising your own issues. In some states, you can file both. If your state recognizes fault-based divorces, you can charge your spouse with cruelty as your grounds. Otherwise, you'd have to file your counterclaim on your state's no-fault grounds, but you could still raise issues of abuse at trial.
Read More: What Is a Counterclaim for Divorce?
Proving Your Grounds
It's generally not enough to tell the court in your counterclaim and at trial that your spouse abused you. Unless your spouse admits to it, you'll have to present convincing proof of the abuse at trial. One New York court dismissed a spouse's claims of cruelty because she did not substantiate that she suffered harm due to her spouse's behavior, and because her personal testimony was unconvincing. Typically, you'd need something substantial to present to the court, such as other witnesses' testimony of abusive events, photos of your injuries, emergency room records, or police reports.
Effect on Divorce
Although not all states consider marital misconduct or fault when determining issues of property, some do. If you can prove abuse, it might result in you receiving a greater share of marital assets. If you have children, your spouse's abusive behavior might have even more of an effect on custody. Courts base custody decisions on the best interests of the children, and some states will not award custody to a parent with a history of abuse. For example, Colorado's statutes specifically require a judge to consider instances of domestic violence against you or anyone else in your household, but you must mention the abuse in your counterclaim for divorce.
Filing a counterclaim doesn't just allow you to countersue your spouse for divorce. It also prevents your spouse from dismissing your whole divorce if he changes his mind about going through with it. Your counterclaim acts as a request for divorce in itself. Therefore, if your spouse dismisses his complaint or petition for divorce, your divorce can still move forward based on your counterclaim.
- Kelsey & Trask: And It's All Your Fault! MA "Fault Based" Divorce #1 – Cruel and Abusive Treatment
- Vermont Judiciary: Answering the Divorce Complaint and Preparing Your Own Complaint (PDF)
- McCormack & Phillips: Cruel and Inhuman Treatment – A Troublesome Anachronism
- New York Divorce Report: Appeals Court Denies Divorce to Wife Assaulted – No Cruel and Inhuman Treatment
- American Bar Association: Chart 4 – Grounds for Divorce and Residency Requirements (PDF)