Answer & Countercomplaint filed after 30-day deadline


#1

Situation: I filed complaint for divorce (included child support/custody of our daughter); my future ex-husband didn’t respond by the deadline (10/29); I filed for & received a hearing date on 11/1 (absolute divorce hearing is scheduled for 11/30) (mediation orientation scheduled for 11/20); just found out from the clerk that he filed an answer and a counterclaim on 11/2 (4 days after deadline); I haven’t received it, but is his answer still valid/relevant?? Does it impact or delay the divorce hearing or the process for mediation? Is there a motion or something I should file to request his answer and/or counterclaim be dismissed since he didn’t file by the deadline; or would it even matter?


#2

Yes, his answer and counterclaims are still valid despite them being late however, a judge will make note that they were filed past the deadline. However, you would have an argument that the allegations in your complaint are deemed admitted because he filed his answer late.

The answer could affect the absolute divorce hearing if he is contesting the absolute divorce (for example, he doesn’t agree to the date of separation you have listed), however, you would have an argument that your allegations are deemed admitted. It will not affect the custody mediation process.

There is nothing you can file to request that his counterclaims be dismissed solely because there were not timely filed.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#3

Thank you. Follow up question. I haven’t formally received his counter-complaint. Delivery was attempted, but I wasn’t home. I haven’t picked it up from the post office yet because of my work schedule; but he sent me pictures (not the Word/PDF) of the paperwork. Is that admissible? Meaning am I responsible for the fact that he sent them to me by email? Am I obligated to pick them up from the post office?
His Answer doesn’t negate my complaint; however, his counterclaim alleges infidelity of physical and/or emotional nature, abandonment and financial dependency; and has requested alimony from ME in addition to child support); will all of that be addressed during the already scheduled divorce hearing? OR will a new hearing date have to be established after a response to his counter-claim is filed by me since I assume I also have 30 days to respond to his counter claim once I’ve officially received it, correct? And that 30 days falls beyond the date of our divorce hearing. (I hope I’m communicating this effectively)


#4

Service by email is not acceptable service, so it does not count that you received the Word or PDF version of the counterclaims and your 30 days to reply to the counterclaims does not begin to run yet. You should go pick it up from the post office. If you don’t, he could send a sheriff’s deputy to your home or work to serve you.

None of these counterclaims will be addressed at the already scheduled hearing. Each new claim must be properly calendared otherwise, the issue is not properly before the judge and the judge will have no authority to rule on alimony, child support, etc. The court date for these issues can be scheduled prior to your 30 days having run to reply to the counterclaim subject to availability on the court calendar.

And yes, you have 30 days from the day you are property served (either certified mail, process server, or sheriff’s deputy) to file a reply to the counterclaim which admits or denies each of the numbered paragraphs. Day 1 of the 30 days begins the day after you were served and is timely as long as it is filed on or before the 30th day.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

Thank you for your response! That’s helpful.


#6

Hello,
In response to my ex’s counterclaims and suit for alimony, I filed an answer accompanied by a series of interrogatories/request for documents. He requested a 30-day extension and that date has also passed. Is that an appropriate reason to request his claim for alimony be dismissed or any reason since he hasn’t submitted any response and it’s been more than 60 days (almost 90 days now)?


#7

No, this would not be considered failure to prosecute a claim. In order to have a claim involuntarily dismissed for failing to do anything with it, there would need to be a court date scheduled and then your ex, as the one that filed the claim, not show up to the court date.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.