You’ve Been Sued For Divorce–What Now?
Your spouse has just served you with divorce papers, suing to end your marriage. Many people in your situation may be anticipating a fight over alimony, property division, child support, and child custody and know they need to run straight to a lawyer’s office to hire an attorney. But what if you aren’t expecting a battle? What if you are planning on settling all of those issues between yourself and your spouse, or if you think most or all of those issues don’t apply to your situation? What do you do? Do you need to hire an attorney? It depends.
Most people facing divorce will have at least one of those four issues (alimony, property division, child support, and child custody), to address during the divorce process. If you’re expecting a fight over any of these issues, you should strongly consider hiring an experienced family law attorney. If you think that you and your spouse will be able to settle your issues between yourselves, you may be wondering whether you even need to answer the complaint for divorce. “After all,” you may think, “If we’re going to settle these issues in a signed agreement, I don’t need to tell the court about them at all.” In many cases, failure to answer the divorce complaint could be a huge mistake that could cost you dearly.
Why You Need to File An Answer And Counterclaim Even If You Don’t Want To Go To Court
In North Carolina, a dependent spouse is usually entitled to alimony payments, and each party is entitled to an equitable distribution of the property the couple acquired during the marriage. However, if the dependent spouse does not ask for alimony, a court cannot give it. The same goes for equitable distribution of the marital property. Why does this matter if you don’t want the court to decide these issues anyway? There is a very important reason: if you take too long getting your agreement made and signed, if your divorce is finalized before you sign the agreement, you have waived the right to ask the court for alimony or equitable distribution.
“But I still don’t care because I don’t want the court involved,” you say. But consider your new bargaining position if you have waived the right to have a court award you alimony or an equitable distribution of marital property. Instead of having a backup plan in which a court could order your spouse to pay alimony and order an equitable distribution of marital property, you have to depend solely on the kindness of your former spouse. No matter how well you still get along, you don’t want to be in that position.
The right to child support is not waived by the entry of a final decree of absolute divorce because it is the child’s right, not the parent’s. The right to child custody also is not waived by the divorce. However, it is still advisable to get these issues before the court in the divorce proceeding rather than waiting until after there is a breakdown in the relationship between you and your spouse. Again, it shows that you are serious and creates a stronger bargaining position if you have the court as a backup plan.
“Ok, so I need to preserve my rights by asking the court for alimony, equitable distribution, child support, and/or child custody. How to I do that?” To preserve your right to have the court decide any or all of these issues, all you need to do is file an Answer and Counterclaim with the court. You normally have thirty (30) days from the day you were served with the original divorce complaint to file an Answer and Counterclaim. However, if you need more time, you can file for a thirty (30) day extension. If you want an extension, it must be filed before your initial thirty (30) days are up. If you need help filing an extension, please contact our office.
Drafting and Filing the Answer and Counterclaim
Many people choose to write and file the Answer and Counterclaim themselves. Be aware that there are many procedural requirements for what the Answer must say, how it must be formatted, and how it must be served.
If you want to handle things yourself but need some assistance writing and filing your Answer and Counterclaim correctly, please contact our office at (704) 288-4700, by using the contact form to the right, or by registering a free account and using the free communications feature inside your secure client portal. We offer this service in all kinds of civil cases, not just divorce.