In 2022 Fairfax County’s courthouse probably had its most famous defendant. You might recall the salacious, almost comical trial pitting actor Johnny Depp against ex-wife Amber Heard. You might also recall the jury’s split decision, in which the jury found for Depp and for Heard. How? Because Depp’s libel trial also had a counterclaim, filed by Heard for defamation. What exactly is a counterclaim, and how does it play out in Virginia family law?

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Civil vs. Criminal Law

American law splits into two main areas: civil and criminal law. Lawsuits are used in both arenas, but civil lawsuits are rooted in disagreements, not crimes.

Civil lawsuits attempt to assign responsibility for legal matters, for tasks done or not done. Think along the lines of slip-and-fall cases, divorce, contracts, and real estate. All important issues, but not usually the stuff of screaming headlines.

Criminal lawsuits are also brought, but these are for felonies and misdemeanors; actual crimes that violate statutes, case law, or constitutions. The plaintiff in a criminal lawsuit is always some governmental entity, like a county, city, state, or country. The defendant in a criminal lawsuit is an individual or sometimes a group (a cabal, conspiracy, gang, crime family, or organization).

Many differences separate the two types of law. Some significant contrasts include:

  • Penalties — Civil penalties usually involve monetary awards, or court orders to desist (stop) in some disagreeable behavior (like libeling a person), or court orders to start doing something (like pay child support); criminal penalties involve prison or jail time, fines, and probation.
  • Attorneys — In America, accused criminal defendants have a Constitutional right to be represented by a competent attorney without cost; no such right exists for civil cases.
  • Trials — Most civil cases are settled either before a judge or through negotiation; almost all criminal cases are presented to a jury of peers.
  • Proof — Criminal cases must be proved “beyond a reasonable doubt” — meaning guilt must be extremely likely as shown by strong evidence — while civil cases only require “a preponderance of evidence,” which means an attorney just has to pass the 50 percent threshold that the party is likely responsible.

Both types of law can include a counterclaim. A criminal counterclaim is usually better known as an alibi. A counterclaim in civil actions is a bit more complicated.

Counterclaim Defined

The law school definition (Thanks, Cornell!) gives us this:

  • A counterclaim is a claim for relief filed against an opposing party after the original claim is filed. Most commonly, a claim by the defendant against the plaintiff.

Counterclaims must come after claims or lawsuits. Suppose your spouse sues you for divorce; you can then file a counterclaim. Say you file for child custody; your ex then files a counterclaim.

Counterclaims in family law actions generally are part of the defendant’s answer to a plaintiff’s claim. Let’s say your spouse sues for divorce. Your experienced family law attorney works with you to craft a response to the lawsuit. That response can include answers to issues raised by your spouse (your defenses), but it can also include your own claims against your spouse (your assertions).

Filing a counterclaim helps the defendant of the original claim go on offense. You have to defend against the original claim, but with a counterclaim you are now asserting your own issues that the plaintiff must defend against.

A counterclaim is a useful way to put the plaintiff in a defensive posture. It can also invalidate the plaintiff’s original claims.

Virginia’s Counterclaims Law

The statute applying to counterclaims is Code of Virginia § 16.1-88.01, which says in part,

  • In any proceeding before any general district court a defendant may, at his option, at any time before trial, plead in writing as a counterclaim, any cause of action at law for a money judgment in personam, or any matter which would entitle him to relief in equity in the nature of damages, that he has against the plaintiff or all plaintiffs jointly, whether or not it grows out of any transaction mentioned in the warrant or notice of motion for judgment…

This is a typically broad law, allowing defendants and their attorneys plenty of latitude in answering claims and asserting their own arguments.

Presenting Evidence for Your Counterclaim

A counterclaim can be a tempting place to unburden yourself as a defendant of everything you don’t like about the plaintiff. Your attorney will quash all that emotion because the burden of proof for a counterclaim is on you, the defendant making the counterclaim.

You need evidence. 

You cannot assert in a counterclaim, for instance, that your spouse consorted with 57 truck drivers at the Big Charlie’s Truck Plaza over there on Northampton Boulevard in Virginia Beach if your spouse did not, in fact, do that.

At some time during the divorce proceedings, you would have to produce evidence of that behavior. If you couldn’t, the counterclaim will be stricken.

Types of Counterclaims

Two types of counterclaims are common in Virginia courts. The first type is a compulsory counterclaim. A common law compulsory counterclaim will nullify (invalidate) the plaintiff’s original claim if the counterclaim is upheld.

Your attorney should ensure inclusion of everything that could be a compulsory counterclaim. A defendant failing to raise a compulsory counterclaim loses the right to that counterclaim and cannot later bring that counterclaim in a subsequent lawsuit (“use it or lose it”).

As an example, if your spouse falsely claims you sold the family’s collection of souvenir spoons and you fail to counter that claim with evidence that she still possesses them, you cannot later sue your ex-spouse for the collection. You yielded that right.

Compulsory counterclaims have four elements, according to the Federal Rules of Civil Procedure:

  1. Subject matter jurisdiction — The counterclaim is compulsory if it concerns the same topic, event, or subject as in the original claim
  2. Original parties — The counterclaim is compulsory if it adds no new parties to the lawsuit
  3. Novel — The counterclaim is compulsory if it does not already exist elsewhere and is pending a decision; it must be a novel (new) counterclaim
  4. Personal jurisdiction — The counterclaim is compulsory if the original claim has personal jurisdiction over the defendant presenting the counterclaim

The second type of counterclaim is a permissive counterclaim. A permissive counterclaim puts forth arguments unrelated to the original plaintiff’s claims. For the defendant, a permissive counterclaim is the opportunity to let loose with provable assertions against the plaintiff.

Suppose your spouse files a lawsuit for divorce, naming you as the defendant and asking for equitable distribution of assets and debts. Perhaps your spouse does not file anything in the lawsuit related to your three children.

Your compulsory counterclaim can encompass child custody, child support, and parenting time (visitation). These topics are related to the divorce. But then, you can file a permissive counterclaim accusing your spouse of marital waste, adultery, substance abuse, and driving infractions that increased your insurance costs. None of those topics was part of the original claim.

You need to provide sufficient proof (“preponderance of evidence’) for these claims, so do not use the permissive counterclaim indiscriminately. Be sure of your accusations before including them in a permissive counterclaim.

What Makes a Good Counterclaim?

One of the most important aspects of American law is the conscious attempt to minimize emotion and allow facts to rule the day. That means histrionics, anger, and outbursts are not tolerated, whether in filings or in court.

A good counterclaim can point to emotionally charged issues but must be founded in reality. Facts matter. A permissive counterclaim of adultery against your spouse must be backed up with observable evidence (video recordings, hotel registrations, credit card receipts, emails, texts, and the like). Virginia’s judges display little patience for a defendant who offers up specious counterclaims in an attempt to fog the central issue.

A well written compulsory counterclaim addresses and responds to every claim made by the plaintiff, in the order presented.

Let’s say your spouse files for divorce and claims you did these three egregious things:

  • Shopped away the mortgage money
  • Burned down the family vacation home
  • Crashed the family ATV

Your counterclaim must present factual evidence that nullifies those arguments, in the same order:

  • Your spouse’s credit card receipts showing online and store purchases
  • A fire marshal’s written report indicating the natural origin of the fire
  • The insurance claim noting that your teenage child wrapped the ATV around a fence post

Counterclaims matter. Johnny Depp won $10 million in his libel claim against Amber Heard, but Heard won $2 million in her counterclaim for defamation against Depp and his attorneys.

Hire an experienced family law attorney to take all your emotional turmoil and turn it into a solid counterclaim. Explain your concerns, listen as your attorney presents the plan for the counterclaim, and gather the evidence needed to support your counterclaim with facts.

The Firm For Men deals with claims, counterclaims, and filings every day. We defend Virginia’s men and protect your rights! Contact our Virginia Beach offices at (757) 383-9184 or contact us online today!