Do I need to respond to a Complaint for Absolute Divorce?

My Mom was served with a Complaint for Absolute Divorce. When they had both lived in NJ, they had court ordered Property Settlement Agreement. This Agreement is governed by the laws of NJ. At the time the Complaint for Absolute Divorce was served, both parents live in NC. Both parents have been following the Property Settlement Agreement for 15 years. I need to know if my Mom needs to respond to the Complaint for Absolute Divorce and what happens if she does not respond. My father tells me that she does not need to respond and that the only response would be if she disagreed that they had been separated for one year. My Mom does not wish to contest the divorce but she wants to make sure that the Property Settlement Agreement is still enforceable after the divorce. She also wants to know what court she would need to go to if my father breached this Agreement? Could she go to Court in NC or would she have to file the case in NJ? We really need advice here because my father wants her not to file and answer and has said that if she files an answer it will open the door for him to respond and he will want to change things in the Property Settlement Agreement. He told me if she does not answer the complaint that he will follow the terms of the Property Settlement Agreement. I am very scared for my Mom. Please help.

Most defendants in an absolute divorce do not respond to the complaint. If there is nothing to contest and the defendant agrees to each of the allegations, then they can chose to not file an answer. After 30 or 33 days from being served (depending on how the defendant was served with the complaint), and no answer is filed, the plaintiff will generally file paperwork to schedule the divorce for a court date. The judge will see that each of the elements of divorce is met from the allegations in the complaint and with no answer from the defendant, the judge will grant the divorce.

Separation agreements typically remain in full force and effect past the time of an absolute divorce but carefully read the separation agreement to see if it states this or if it states something different.

It is not true that by filing an answer to the divorce it will open the door for your father to change the separation agreement. Generally separation agreements are modifiable only by the consent of both parties, however, carefully read through the separation agreement.

If your father breaches the separation agreement, your mother would file a breach of contract lawsuit against him in NC district court because both parties are residents of NC. However, NJ law would apply in determining whether or not there was a breach (assuming the separation agreement states that NJ law governs the separation agreement).


Anna Ayscue

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

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