A recently published decision of Saseeshkumar v. Venugopal confirms that a request to amend a Complaint and/or Counterclaim for Divorce can and should be freely permitted in the interests of justice. While the facts here are very interesting because they are salacious, as some may say, the concept is not novel and it’s surprising that the lower court did not allow the Defendant to amend the Answer to include a Counterclaim (or two) on either the initial motion or the appeal.

In this matter, the plaintiff filed a complaint after an over 30-year marriage and the defendant filed an answer without a counterclaim. A counterclaim would have enabled defendant to seek a divorce even if plaintiff ultimately did not pursue her complaint for divorce. Instead, defendant filed an answer that denied the allegations made by plaintiff and denied that a cause of action (essentially, a reason required to obtain a divorce) accrued. Notably, plaintiff’s cause of action within her complaint was irreconcilable differences, which is the NJ ‘no fault’ divorce, requiring a party to plead that irreconcilable differences occurred at least six months prior to filing the complaint/counterclaim, and there is no reasonable prospect of reconciliation. Thus, by defendant denying that a cause of action accrued, he denied that they had irreconcilable differences in their marriage.

The parties were simultaneously engaged in a civil case regarding a business dispute, which involved their business partner who, it seems, plaintiff also engaged in an ‘inappropriate’ relationship with and worse conduct inasmuch as it relates to overpaying the business partner, purchasing a home in India where they resided together with business funds, and more. Ultimately, defendant filed a motion to amend his complaint for both irreconcilable differences and extreme cruelty (a separate cause of action). The plaintiff objected, claiming that the narrative alleging extreme cruelty all occurred before he filed his answer so he ostensibly already knew about the allegations when filing and because he didn’t name the source of the information. The defendant responded by claiming he first learned of plaintiff’s conduct during the course of the divorce and that he needed his own cause of action to pursue the divorce because plaintiff frequently traveled to India and if she did not pursue the complaint he would not be able to procure a judgment of divorce. The trial court denied the application, erroneously, finding that granting the application and allowing the pleadings would exacerbate the acrimony and mistakenly finding that defendant already filing for irreconcilable differences, which he never did. The trial court also denied defendant’s reconsideration motion, wherein defendant pointed out the court’s mistake about the lack of irreconcilable differences filed on his behalf and providing again that he gained context of plaintiff’s behavior/breakdown of their marriage during the divorce.

Notably, as for procedure, plaintiff only filed a letter brief for both applications – not a certification (i.e.: affidavit) from plaintiff. A letter brief must include facts from the certification and vice versa. This makes sense because an affidavit/certification supporting/opposing a motion must be based on personal knowledge and the attorney couldn’t have personal knowledge of the facts of the parties’ relationship. So, procedurally, this was also deficient.

The leading Court Rule here is Rule 4:9-1. As the Court states:

Rule 4:9-1 describes when a party in a civil case may amend a pleading,
including “at any time before a responsive pleading is served or, if the pleading
is one to which no responsive pleading is to be served, and the action has not
been placed upon the trial calendar, at any time within [ninety] days after it is
served.” Thereafter, a party may also amend “by written consent of the adverse
party or by leave of court which shall be freely given in the interest of justice.”

In exercising its discretion whether to grant leave to amend, the court is
guided by the fact that leave is “liberally granted and without consideration of
the ultimate merits of the amendment.” Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.1 on R. 4:9-1 (2024); see also Kernan v. One Washington Park,
154 N.J. 437, 456-57 (1998). “The broad power of amendment should be
liberally exercised at any stage of the proceedings, including on remand after
appeal, unless undue prejudice would result . . . .” Ibid. (citing Bustamante v.
Borough of Paramus, 413 N.J. Super. 276, 298 (App. Div. 2010)).

Here, the trial court was plain wrong about defendant previously filing his own cause of action for irreconcilable differences. Moreover, the judge was wrong by not liberally granting the defendant’s request when he did properly plead both irreconcilable differences and extreme cruelty in the proposed counterclaim (a part must attach the proposed amended pleading to the motion seeking leave of court to file same).

The Appellate Division also noted that while it is the trial court’s job to streamline a case and get the parties to the proverbial finish line, the trial court deals with acrimonious cases (probably more often than not) and cannot deny a request to amend a pleading to reduce acrimony. Likewise, this was not a simple divorce, this was a divorce that involved business litigation and plaintiff’s request/defendant’s proposed request for alimony and equitable distribution related relief, all of which is related to each other. Take a look at the facts to see why the court hints at a loss of alimony due to egregious conduct of plaintiff (and see Eric Solotoff’s blog here) and addresses how dissipation relates to equitable distribution.

Another important note is the court’s finding that Rule 4:42-9 is inapplicable here because the Rule addresses amending a counterclaim but the defendant here did not file a counterclaim; rather, he was seeking to amend his answer to include a counterclaim. Rule 4:42-9 states:

Amended or Supplemental Complaint or Counterclaim in Dissolution Matters. In any action for divorce, dissolution of civil union, termination of domestic partnership, nullity, or separate maintenance, a supplemental complaint or counterclaim may be allowed to set forth a cause of action which has arisen or become known since the filing of the original complaint, and an amended complaint or counterclaim may be allowed to change the action from the originally pleaded cause to any other cognizable family or family type action.

In comparison, Rule 5:4-2(d), which does apply, states:

Counterclaim. A counterclaim may state any family cause of action, and any other cause or causes of action which exist at the time of service of the counterclaim. A counterclaim not stated in an answer may be filed by leave of the court at any time prior to final judgment. Failure to file a counterclaim for divorce, dissolution of civil union, termination of domestic partnership, or nullity shall not bar such cause of action. . . . (emphasis added).

So, all of this boils down to the confirmation that a request to amend a counterclaim in a family law matter should be liberally granted at any time prior to the final judgment and without consideration of how acrimonious the case is and certainly without mistakenly finding that a party filed a counterclaim he/she never did.


Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.