In a fault-based divorce state, consider the following situation:
- Spouse files for divorce using false mental cruelty allegations
- Realizing that the other spouse will contest it, withdraws the lawsuit before it is even served or heard WITHOUT seeking liberty to refile
- Refiles second divorce lawsuit with many additional false allegations the next day. None of the fictitious allegations are after the date of withdrawal, but there is one allegation that happened after filing of original lawsuit
Does res judicata apply and can a prayer be made for dismissal of second lawsuit?
Family Law Attorney
As most New York divorce attorneys will tell you, it is usually a waste of money to dispute procedural errors that can easily be corrected. In the example above, res judicata would not apply, and issue was never joined. Indeed, as you point out, the defendant was never even served. Thus, there was no case. In a New York divorce, the plaintiff has 120 days from the date the index number was purchased to serve the defendant, and if the 120 days passes, the index number expires, but another may be purchased. Whether the plaintiff makes false allegations in a complaint that was never served has no effect on a case involving fault. Also, divorce in New York no longer requires "fault" since the grounds of "irretrievable breakdown" are now available under the DRL. If you are personally in a divorce situation, you should at least consult with a local attorney to discuss in confidence all the relevant circumstances and to review your rights, options and obligations so you can make informed decisions going forward regarding the case. You can find attorney contact info below or by searching among the profiles here on AVVO. Good luck!
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Divorce / Separation Lawyer
I concur with the previous response and would add that you need to consult with an experienced attorney who will explain to you that the allegations on fault are generally meaningless... sorry! it is just so much fun to be able to see the alleged wrongdoings of your spouse spelled out on paper, right? Unless the allegations can be seen as having some impact on the custody and visitation issues in the case, or unless the other party's actions were "egregious", "shocking the consience of the Court", my advice would be to forget the mudslinging and just deal with the real issues... otherwise, your attorney will be driving a new car at your expense.
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Divorce / Separation Lawyer
The prior answer is correct. Res Judicata does not apply to a matter that has not been determined. Speak to a local attorney about your options to contest, but with Irretreivable Breakdown, it is likely that you will agree upon that ground during your Preliminary Conference.