Begining the Court Process
To begin the court process in a separation or divorce proceeding, then you must first file a civil lawsuit, which is started when someone or some agency files a complaint. The complaint makes certain factual assertions to establish the complainant’s reasons for believing he or she is entitled to the relief being sought in the complaint. A complaint may contain a single claim or it may contain multiple claims. Thus a complaint could seek custody and/or child support alone, or in combination with other claims.
In family law matters, there are ordinarily no strict time limits within which a complaint must be filed. Basically, someone files a complaint at the moment he or she decides the court needs to become involved. Sometimes the complaint is filed to get the other side’s attention, as an incentive to serious work on settlement. Other times the complaint is filed because there is no other way the case is going to get resolved.
The person or entity filing a complaint is known as a “plaintiff” or complainant. The complaint is filed against one or more “defendants.” In family law matters, of course, most complaints are filed by one spouse against the other spouse. In child support matters, however, the child support enforcement agency may be bringing the civil action on behalf of the State acting for the child or the parent.
The defendant then generally has thirty (30) days from the date the complaint is served on him or her to file either the “answer” to the complaint or to file for a 30-day extension of time in which to answer. The answer admits or denies the plaintiff’s allegations and may also raise counterclaims. For example, if the plaintiff has filed a claim for sole custody in their complaint, the defendant might counterclaim for sole custody in their answer. When the defendant raises one or more counterclaims, the plaintiff then has thirty (30) days in which to file either the “reply” to the counterclaims or to request a 30-day extension of time in which to reply.
The divorce complaint must be filed in a county of North Carolina where either you or your spouse is living at the time the complaint is actually filed. One of you also needs to have lived in North Carolina for at least six months prior to the filing of the complaint. That is the residency requirement for the court’s obtaining jurisdiction over an absolute divorce.
Once you have been separated for one year and one day, you can have an attorney file your divorce complaint. There are a few things that any attorney’s office will need to know before completing a complaint on your behalf. They are as follows: which of you (or that both of you) have lived in North Carolina for at least six months, the date of your marriage, and the date you were separated. If there were children born of the marriage, you must inform the attorney of the number of children born of the marriage, their names, and their birth dates. Finally, if you want to change your name as part of the divorce, you need to tell your attorney that you desire to resume your maiden name (or the name of a prior deceased husband, or the name of a prior husband with whom you had a child of that surname).
Discovery is a term for the formalized exchange of information that occurs within the context of litigation. This is often a critical process for investigating all the facts in a case. Through discovery, each party can gain a better understanding of the facts in the case and, thus, of the strengths and weaknesses of a particular position. Knowledge is gained in discovery through the mandatory disclosure of requested information, usually financial records. Despite the potential usefulness of discovery, however, the process can also become extremely expensive and time-consuming.
North Carolina rules permit the following discovery methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things, or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. The following paragraphs addresses each of these types of discovery.
Discovery in the form of written Interrogatories is where one side puts together a set of questions, to which the other side responds. An example of written Interrogatories would be the following: “List each employer you have had over the last 3 years, your job title, and your salary for each.” Interrogatories are frequently used in divorce litigation to acquire information about financial assets and debts. An example of such an Interrogatory would be a question about bank accounts and balances during a specific time period. The answers to Interrogatories are made under oath.
A second method of discovery is a written Request for Admissions. One party makes written assertions of fact (or assertions as to the genuineness of a document), and requests that the other party admit such assertions. Under this type of discovery, the answering party is to respond to each request for admission by specifically admitting or denying the matter, or by setting forth in detail why the answering party cannot truthfully admit or deny the matter.
The last popular method of discovery is a Request for Production of Documents. Often this method goes hand in hand with Interrogatories. For instance, in conjunction with an Interrogatory about bank account balances, a party might request production of all monthly bank account statements over a specific time period. Requests for Production are surefire ways of obtaining detailed financial information.