Due Process Question

North Carolina Divorce Law Divorce and Separation Answers
1

A motion is not required to be served any particular way once a case has been initiated. Since this is a motion to modify you do have an active file. There is also no requirement that you receive a file stamped copy of the motion.

With respect to the response, you may file a responsive motion prior to hearing, however motions are different from pleadings and the response is usually set forth at the hearing.

You will need to attend calendar call to have a say in when the hearing is actually set, and may ask the court for a continuance at that time based on the fact that you only recently received notice and are living out of state.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

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.

2

I lost my job, got another job in FL and told my ex I was moving with children. My ex’s attorney sent me a copy of a motion to modify custody, visitation, child support, etc. back in mid-July. The copy that I received was just a copy of the motion - no stamp from the clerk. I have never received anything else.

I hired an attorney and he has supposively been checking to see if there was a court date - none was set. My attorney suspected that my ex’s attorney never filed the motion and sent it to me to try to scare me into giving my ex what he wanted - a reduction to child support.

I am now out of money - I have spent over $5,000 on my attorney so will be going pro se out of necessity. All I have gotten for my $5k is I moved to FL and a temporary visitation order for my ex.

I called Family Court last week and was told that there is a calendar call on December 19th for the January 27th session. I spoke with my attorney’s assistant on Friday and she said my attorney just received a notice of hearing from the ex’s attorney, but he also has not been served with a copy of the motion.

Wasn’t I supposed to have been served a copy of the motion by certified mail or sheriff’s department? I should have then had 30 days to respond to the allegations in the motion and begun discovery. If I was not properly served, what can I do now?