Motion to Compel

I filed a restraining order against my wife, and she has to the 14 August to respond. She already asked for a extension, so she has to respond. I ask my attorney to file a motion to compel, and she wants to wait until the settlement conference we have. I think it is better to file a motion now, since we might not settle.

How long does a person have before they must respond to your complaint? If we file a motion to compel, she will have 30 days to respond right?

You cannot compel a response if your wife was granted an extension of time. A person has 30 days to responds to a Complaint and if an extension is asked for and granted (these are almost always granted) they have an additional 30 days (60 total from the date of service) to respond.

So already had 60 days. She had 30 days, and then filed a extension for 30 days. What do you do if no reply after 60 days? File a motion to compel?

A motion to compel is not filed in this instance. If she did not answer within the 60 day time period you may file a motion for default judgment as all of the allegations in your Complaint are deemed admitted.

I received a response in time on the 13 August, and he has filed a motion to dismiss. The reason being is because we are still living together and we requested also equitable distribution. We had two claim one restraining order and the other equitable distribution. Since we are still married can we just dismiss the equitable distribution and still keep the restraining order? I heard you can’t file equitable distribution if you are still living under the same roof. I am not sure. or can we still keep both?

What would you recommend being the next step?

Also, she said Defaults do not
apply to Chapter 50 actions.

I can’t file a motion for default judgement.

If you are still living together an ED action does not lie. The retraining order, if dealing with property is also dismissed as it is part of the ED action.
Defaults can be granted in chapter 50 actions, but are not granted in custody cases.

Hey Erin… I am going through the same thing. Only difference is she moved out and came back to the resident. While she moved she filed the ED claim. Since she been back for about 3 months we was doing the same things before the divorce proceedings, I have video and text message evidence… Is that ED claim still valid? If not do you of any cases that the ED was dismissed?

You cannot have an ED action without a date of separation for Husband and Wife. If the judge finds that there was evidence of a reconciliation, then the originally filed ED action will have to be dismissed.

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.