Ch. III: Pleadings and Motions · Current through June 1, 2026 · Last verified September 9, 2026
In one sentenceRule 13 makes a counterclaim compulsory when it arises from the same transaction as the claim against you, permissive when it does not, and allows cross-claims between co-parties.
(a)Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the Court cannot acquire jurisdiction, except that such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action.
(b)Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
(c)Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
(d)Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after service of that party's pleading may, with the permission of the Court, be presented as a counterclaim by supplemental pleading.
(e)Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of Court set up the counterclaim by amendment.
(f)Cross-Claim Against Coparty. A pleading may state as a cross-claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
(g)Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.
(h)Separate Trials; Separate Judgments. If the Court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered when the Court has jurisdiction to do so, even if the claims of the opposing party have been dismissed or otherwise disposed of.
End
Plain-English Summary
Compulsory. A pleading must state as a counterclaim any claim the pleader has against an opposing party at the time of serving it, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. The consequence of leaving one out is the point of calling it compulsory.
Permissive. Any other claim against an opposing party may be stated as a counterclaim. It may exceed the opposing claim in amount or differ from it in kind, and it need not diminish or defeat what the other side seeks.
Late ones. A claim that matured or was acquired after the pleading was served may be presented by supplemental pleading with the court's permission. And a counterclaim left out through oversight, inadvertence or excusable neglect — or where justice requires — may be added by amendment with leave of court.
Cross-claims. A party may claim against a co-party where the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim. Additional people may be brought in on a counterclaim or cross-claim under Rules 19 and 20.
Separate judgments. Where the court orders separate trials under Rule 42(b), judgment on a counterclaim or cross-claim may be entered when the court has jurisdiction to do so, even if the opposing party's claims have been dismissed.
Frequently Asked Questions
Do I have to bring my counterclaim now?
If it arises out of the transaction or occurrence that is the subject matter of the claim against you, yes — the rule makes that counterclaim compulsory.
Can my counterclaim be worth more than the claim against me?
Yes. A counterclaim may claim relief exceeding in amount or different in kind from that sought by the opposing party.
What if I forgot a counterclaim?
Where it was omitted through oversight, inadvertence or excusable neglect, or where justice requires, you may set it up by amendment with leave of court.
Can I sue a co-party?
Yes, by cross-claim, where the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim.
Source & verification. The rule text and amendment history are reproduced verbatim from the Delaware Family Court Rules of Civil Procedure (Fam. Ct. Civ. R. 13), and every rule has been checked word for word against the Delaware Family Court’s own published edition of these rules. Current through June 1, 2026. The plain-English summary is original and written by us. Last verified September 9, 2026. ·
Official source
Also known as:compulsory counterclaim Delawarecross-claim Delaware Family CourtFam. Ct. Civ. R. 13