Answering a Lawsuit


#1

My husband is suing me for custody of our children. What do I put in the sections entitled
“Affirmation Defenses,” and “Counterclaims.”


#2

You will not have an affirmative defense to a custody lawsuit filed against you. For counterclaims, you should file a counterclaim for child custody asserting your position that you also want custody of your children and asserting your claim for that (assuming you are opposing his custody claim against you). You can also counterclaim for any other actions in which you are eligible for and wish to pursue court involvement (child support, equitable distribution, postseparation support, alimony, divorce from bed and board).

Note there is a $150 fee at the clerk’s office when you file your counterclaims (which is the same as when someone files a complaint).

You will also need to go through each numbered paragraph of your husband’s complaint and “admit” or “deny” each of the allegations.


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! Are their examples on the internet that shows how I would word the counterclaims? Is divorce from bed and board essentially asking him to move out?


#4

Take a look at our Sample Court Complaint for a guide as how to word your counterclaims. While this is a sample complaint that would be filed by a plaintiff, a counterclaim is the same as a claim made in a complaint except that a counterclaim is made by a defendant in a lawsuit.

Divorce from bed and board can be helpful when one spouse refuses to separate because if granted, it can require that spouse to leave the marital residence, among other things. However, you must have valid fault grounds to be able to make this claim. For more information on divorce from bed and board, check out our detailed article What is a Divorce From Bed and Board?


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 so much!
You’re awesome!


#6

Hey! so another question:
In his claim for relief, he stated how great he would be as the childrens’ primary care taker and he asserted things he thinks I have done wrong. The way my counterclaim is worded (as based on the example you sent me, thank you very much!) I have the items worded as:
15. Mother has established a very strong substantial emotional bond with the minor children, having stayed at home with them for most of their lives. As a stay-at-home Mom, Mother was glad to forego her career aspirations to stay at home with the minor children, and hence has been their primary care taker since their births. Mother has been responsible for meeting their medical, physical, emotional and social needs as well as any other needs they have had.
16. Mother hopes to be employed soon as an Exceptional Children Teachers’ Aid in the Union County Public School System as well as a private Tutor out of the home for students who have Dyslexia as she finishes her Orton- Gillingham Associates Certification. This will ensure that Mother is and will still be available to the minor children at any time of the day or night.
17. Mother has been responsible for the minor children’s physical, emotional and social development since they were born. Mother has been a nurturing and incredible Mother throughout their lives, as evidenced by their current standing as great young men. Mother initiates and follows-through with the children’s daily routines including their morning and evening routines, educational routines, social activities with their friends and schedules all medical appointments with no help or input from Father.

  1. Minor children have frequently asked Mother questions like: “Do I have to grow up to be a man like dad? He’s mean and he makes sorry he’s my dad,” “Why does dad always hit us when he’s stressed?” and “When dad gets in my face and yells at me, I’m so afraid he’s going to hit me again,” just to give a few examples.
  2. Matthew especially seems to be the most frequent target of Father’s abusive tirades, and has indeed stated on many occasions to several different people that he is afraid of his dad. Mother has tried to intervene in their disagreements, which generally arise from Father’s inability or perceived inability to handle or control his present situation, with disastrous consequences. Father frequently becomes enraged and has hit Mother on multiple occasions while in the parties’ private Master Bedroom, including busting her lip, her knee and hitting her in the back so hard she couldn’t breathe well or get up off of the floor for several minutes. If it hadn’t been for Father’s pleading to Mother to not call the police and the Department of Social Services, Mother would have left him soon after. Father has also held Mother down and screamed in her face that he would “kill her if she ever tried to leave the house with his children.”
  3. One such evening in 2015_, Mother had a late appointment and left Father alone with the children. When Mother got home around 7:30, she calmly asked Father what the minor children had for dinner. He didn’t remember then admitted he said he didn’t fix them anything. Mother questioned the fact that he hadn’t fed them and Father got so angry, he stormed around the house for an hour screaming and hollering at Mother and the minor children in a manner that was out-of-control. Mother could not reason with Father or calm him down. Mother finally as a last-ditch effort to help him stop his tirade, dialed the number for 9-1-1, WITHOUT sending the call, and showed it to him. He finally stopped his ranting and raving, and threatened Mother if she called 9-1-1. When the phone rang, Mother answered it, it was the 9-1-1 operator asking if everything was okay. Mother did not realize just dialing the number would automatically call the Emergency Center.

Does this sound like I’m going about it the right way as far as you can tell without being familiar with the case at all?


#7

Yes, without knowing the specifics of your case, this is fine, and these are the types of allegations you would want to include in your counterclaim for child custody. However, note that you do not need to plead with specificity in your counterclaims. This means you don’t need to include details but rather include general information which will at least give the other party and understanding as to why he is being sued. But you can choose to include this level of detail if you wish.


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.


#8

I filed my answer to my husband’s lawsuit and a counterclaim in NC, but was not told to pay the filing fee, so I’ve got to go back to the Clerk’s office today to pay it. Should i type a letter apologizing to the Clerk of court
because I should have know n to pay I’m pro se, and if so what should it say? My heart is telling me to tyepe one up. but I don’t know what to do!


#9

No letter is necessary. You only need to pay the filing fee per the clerk at your county’s clerk’s office.


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.


#10

HI, Anna. Thank you so much for all your help!
I have one more question. I sent a copy of the Answer and counterclaim to opposing counsel by certified mail. But I do not remember if I attached a copy of the summons with it!!! I feel so dumb that I can’t remember!

Should I: 1. resend the packet in certified mail WITH a summons form just in case I didn’t do it correctly the first time?? and/ or 2. refile it with the court then resend it?


#11

You do not need a Civil Summons with an answer and counterclaims. As long as you served it on the attorney on the other side and filed a certificate of service with the clerk of court, no further action is needed from you.


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.