Q: I filed a divorce based on no fault in NY
wife answered and counterclaimed divorce based on no fault.
Can i dismiss her counterclaim because it is the same grounds of divorce which i filed first as she did not allege different fault grounds.
I read Fox v fox case where both parties filed based on cruel and inhumane treatment. One file and other counterclaims. Her answer to the husband's "second amended verified complaint" purports to assert one new cause of action for divorce on the ground of cruel and inhuman "do not necessarily constitute a new and independent cause of action but are rather in aid of the plaintiff's cause of action * * * as made by her original pleading" (see Smith v Smith, 99 App. Div. 283, 285). The new allegations of cruel and inhuman treatment do not constitute a new cause of action for divorce, but merely assert new facts in support of a cause of action asserted as a counterclaim in the wife's original pleading, and with respect to which issue had been joined.
A: David's Answer: No, she can assert her own ground for divorce - essentially she has counter-sued you for divorce. That way, if you decide to withdraw your divorce for whatever reason, hers is still pending. Schedule a consult with a NYC Divorce attorney for a full assessment. -- David Bliven, Bronx Divorce Attorney, (www.Blivenlaw.net)