Eager to obtain example(s) of Motions for Interim Distribution. Does any one know where I could search? I understand that it is best that a lawyer is obtained but cost of lawyer far exceeds value of pending divorce settlement. I have managed to file Separation Agreement and Complaints for ED, post separation support and alimony and all is well. Need to file the above motion in order to get the marital home on market asap. Thanks.
There is no specific form for the motion as it is dependant on the facts of your case. You need to ensure that you include the case caption, the allegations of fact which entitle you to an interim distribution and a prayer for relief in which you ask the court to have the home listed for sale.
Again, thank you. My biggest concern is the “legal language” in which the motion should be written. Are the courts lenient concerning documents filed by a private party that lack legal language as long as all the facts, etc. are present? Thanks
There is no specific legalese that has to be in any pleading or motion, you simply need to state the facts and make it clear in the motion that you are entitled to the relief you are seeking based on those facts.
For example, in your allegations of fact you will state that you and your spouse were married and have property which is subject the Equitable Distribution based on the fact that said property was acquired during the time you were married and before separation. Based on NCGS 50-20(i) you are entitled to an interim distribution.
I have included a sample motion. THIS IS JUST A SAMPLE. You would need to of course include your case caption at the top of the motion (State, County, Court division, party names and file number), the facts specific to your case, ect.
NOW COMES Plaintiff, and moves the court pursuant to N.C.G.S. 50-20(i)(1) for an immediate interim distribution of property. In support of this motion, Plaintiff sets forth the following allegations:
Both parties are citizens and residents of Any County, North Carolina.
Plaintiff and Defendant were lawfully married to each other on Any Day, Any Month, Any Year and separated on or about Any Day, Any Month, Any Year
There were two (2) children born of the union and marriage of Plaintiff and Defendant, to wit: Jane Doe, born Any Day, Any Month, Any Year and John Doe born Any Day, Any Month, Any Year and;
That on or about Any Day, Any Month, Any Year the parties separated and Plaintiff moved out of the marital residence.
The marital residence, owned by both parties as tenants by the entirety, is located at 123 Main Street in Any Town, NC There exists approximately $100,000 in equity in the home and the home is the parties’ main asset.
Since the date of separation, Defendant has indicated that she does not want to sell the home.
Since the date of separation on or about Any Day, Any Month, Any Year, Plaintiff has timely made all of the mortgage payments owing on the residence and additionally has borne the burden of the other expenses related to maintaining the home including payment of utilities.
Plaintiff does not have the means to continue to bear the burden of maintaining the marital home and is in need of an immediate interim distribution in the form of having the home listed for sale.
Plaintiff has no savings which he can use to continue to meet the monthly expenses related to the home for the indefinite future. Plaintiff is at a serious risk of not having sufficient funds to continue paying his reasonable expenses, and the reasonable expenses for the children, including the rent on the residence where he resides, and placing the marital residence for sale is the only remedy.
Plaintiff desires to list the marital residence for sale with a licensed real estate agent, at an agreed upon price, for immediate sale. In the event that the parties cannot agree upon a sales price, then the court should set one.
Plaintiff asks that any and all proceeds from the sale of the marital residence be divided equally between the parties at the time of sale.
WHEREFORE, Plaintiff respectfully requests the court:
To compel the Defendant to allow Plaintiff to place the marital residence on the Any County real estate market at a price mutually agreed upon by the parties or, in the alternative, at a price determined by the court if the parties cannot agree.
To allow the Plaintiff to select a listing agent and compel the Defendant to sign a listing agreement with the same.
To order any and all proceeds from the sale of the marital be divided equally between the parties.
This is the ________ day of March, 2009.
CERTIFICATE OF SERVICE
I hereby certify that a copy of this document has been served by depositing a copy in the US Mail in a properly addressed, postpaid envelope to:
This is the _______ day of March, 2009.
Erin - I don’t even think thank you is enough. The time you spent composing just this one email tells me how much Rosen is devoted to these forums. Especially for the innocent, downtrodden and financially strapped spouses out there - it is so appreciated.
One question, though, can I add post separation to this interim motion? My sister is beyond broke and I don’t know if she can make it through to the hearing. Post separation support was filed in our original complaint with the ED filing.
If your sister included a claim for pss in her original complaint, she does not need to file a motion. She simply needs to set the matter for hearing on the court’s calendar. She will need to contact the court (usually the clerk depending on the county) and ask for a date. She will then need to give the clerk her case number and then prepare a notice of hearing, and if the county she lives in requires, a calendar request. Many of these forms can be found at www.nccourts.org.
Once the hearing date is set she will need to prepare a financial affidavit, often these are unique to each county and can be found by reading the local rules for the county in which the action is pending. These rules will also dictate which financial documents she must submit to the opposing party (or his attorney) prior to the hearing (usually the documents are to be shared ten days or more before the hearing.)
I wish both you and your sister all the best.
Erin - my sister’s soon to be ex filed extension to original complaint. Do we have to wait until extension deadline to ask courts to schedule hearing for post separation support that was included in original complaint?
no, you may go ahead and schedule the hearing.
Hi - I have prepared the Notice of Hearing and the Domestic Relations Calendar Request. My sister is going to the courthouse tomorrow with these and also her Financial Affidavit. Here are my questions.
- Soon to be Ex does not have an attorney. Are we under any obligation to let him know what is expected of him the day of the hearing? I mean, it is in our best interest to make sure he completes the financial affidavit correct? Can we file a complaint if we do not have his financial affidavit within 10 days of scheduled hearing (or per days set by local rules)? If he shows up to the hearing without his information the judge will just grant a continuance correct? He won’t just file in favor of the plaintiff, my sister?
Also, once he is served the Notice of Hearing can he file the dreaded extension?
Yes! You must send copies of any and all documents filed with the court to your sister’s ex. The notice of hearing, the financial affidavit and the calendar request must all be sent to him via U.S. Mail. You must also attach a certificate of service to the back of each of these documents which states that the plaintiff certifies she mailed the documents to the defendant at his address with her signature and the date mailed.
If he does not complete the financial affidavit you may ask the judge to order sanctions.
The ex cannot file an extension, but may try to persuade the judge to continue the matter to the next trial term. Based on the facts of this case I believe any request for a continuance would be denied at this point.
Hi Erin - I recenty served Notice of Hearing for PSS and Financial Affidavit to my sister’s soon to be ex. Also filed same with district courtl. Here are my questions:
I did not include in the Notice served on the soon to be ex an official request for his Financial Affadavit. I know that this requirement is NC law, but I want to send a certified letter anyway to request this information. I do not want him to come to court lacking information unless of course it was “willful” neglect. Do I have to send a copy of this letter to the District Court also?
My initial Complaint filing holds ALL of the detail as to why my sister is entitled to PSS, which was NOT included with the calendar request or the Notice of Hearing. Will the court refer to the initial complaint in her case file for her many reasons for asking for PSS or was I obligated to offer the detail again when I filed the Calendar Request?
You do not have to file the letter, you should bring a copy to the hearing to prove he was informed of your request for the documentation.
You do not have to repeat the allegations in the complaint in the notice, these allegations are to be proved at the hearing.
No problem. Good luck with the hearing!!
Hi Erin - I have succesfully scheduled a PSS hearing 4/20, an interim distribution hearing 5/11/2009 for the marital home and we received notice that the first ED hearing has been calendared for 5/29/09. Here is my question, we filed for ED for one main reason and that was to protect my sisters interest in the marital home, the only real asset. Both parties have since divided all other property/debt. Can I wait until the Interim Dist hearing is completed on 5/11/2009 and then file an order that we mediated the balance of the assets/debts and no longer need ED? Because I knew all along our only intent was to secure interest in the house, we have not filed our ED affidavit. The court gave my sister a deadline of 4/20/2009. If we don’t file her affidavit by 4/20/2009 (knowing we mediated out of court), are we open to sanctions by the court?. We are not concerned about stb ex, he is clueless. Thanks.
The parties can enter into a consent order relating to the rest of the property that was divided after the home has been dealt with.
If your sister was ordered to file her ED affidavit by a certain date, she must do so. The court can sanction her if she does not comply.