Motion for Summary Judgement

North Carolina Divorce Law Divorce and Separation Answers
1

So, I’ve filed for divorce
Served my husband via certified mail
received receipt of certified mail
AND
Husband answered and agreed to the divorce…

Can I go ahead and file a motion for summary judgement and notice of hearing?
Do I still have to wait the 33 days from the day he was served?

2

A motion for summary judgment cannot be filed before 30 days have elapsed from the commencement of the action. See Rule 56 of the Rules of Civil Procedure for more details about the filing and calendaring of the hearing.

3

Thank you so much for the response! Dernit…was hoping to speed up the process since he sent the response.

4

You’re welcome.

5

I’m ready for this to be behind me! The 30 days have elapsed and I’m ready for the next step. I have two questions I hope you can help me with quickly.

1. I’m still confused about the summary judgement divorce vs. the testimonial hearing. Which one should I request?

2. He was served at work via certified mail. His receptionist signed the certified mail receipt rather than him. I had him complete the affidavit of service. Should I take the receipt as well as the affidavit?

My ex answered the complaint:

Defendant being first duly sworn and answering the Complaint of Plaintiff, alleges:

  1. Defendant admits each and every allegation contained in the Plaintiff’s
    Complaint.
  2. Defendant hereby waives his/her right to amend his/her Answer to
    Plaintiff’s Complaint as heretofore filed in this action.
  3. Defendant hereby waives his/her right to demand a trial by jury.
  4. Defendant hereby requests that this action be immediately calendared for
    trial.
  5. Defendant hereby requests the Court to grant an absolute divorce
    dissolving the bonds of matrimony between Plaintiff and Defendant as
    prayed for in the Plaintiff’s Complaint and Defendant’s Answer thereto.
  6. That the Defendant understands, once this divorce is granted, it will be too
    late to file a claim for Equitable Distribution of marital property and/or
    marital debts, for spousal support or for alimony.
6

The affidavit of service is something you should sign which shows how you served him. He could sign an acceptance of service waiving service under Rule 4. Serving the receptionist is not good service on your spouse, but if your spouse answered the complaint, he has waived service, and you don’t need to prove it (See Rule 12(h)).

If I was doing a divorce pro se, i would calendar a live divorce. You can schedule a live divorce sooner, and you do not have to pay the $20 motion fee.

7

Does he need to be present during a live divorce?
Is there special paperwork required for a live hearing?
The 5-day notice requirement: is that business days or actual days?

8

…and Kathleen, if I knew where you were, I would bring you homemade cookies! Thank you so much for taking your time to help!

9

He does not need to be there, but he does have to receive notice of the hearing.

Rue 6(d) states, in part, “A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.” Rule 6(a) tells you how to compute the time: “In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, including rules, orders or statutes respecting publication of notices, the day of the act, event, default or publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed for transactions, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.”

As for what needs to be filed, it would probably depend on your jurisdiction. For instance, in Wake County we have a form that combines the notice of hearing and a calendar request.

And, you are welcome. I’m glad to be of assistance.