I had my husband served on the 19th of May. The complaint included temporary child support and custody, pss, and a number of other issues. The hearing on temporary matters was June 5 and was continued to July 10. He is represented and an attorney representing him was at calendar call and asked for the continuance. I have not yet received any answer to the original claim. My question is, if I do not receive an answer within the 30 days, can I get a default judgement on temporary matters? Do I need to prepare proposed orders on those matters to expedite the process? Since I did not ask for specific amounts in the complaint, will I have to justfy them in the event that I get a default judgement?
You cannot get a default judgment on such issues - a judge will only rule on such issues at a hearing/trial… You will likely receive either an answer or a motion to extend time to answer. The answer or motion to extend time needs only to be filed within 30 days the defendant was served with the complaint. It must be mailed to you thereafter, but an answer or motion to extend time does not have to be served on you within 30 days of the defendant being served.
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.
If he/his attorney drag their feet and do not get the answer or an extension filed in adequate time, what are my options to compel them to respond in a timelier manner? Can he be held in contempt?
There is nothing that can be done to compel a defendant to answer a complaint against them. Your husband cannot be held in contempt because there is no court order requiring him to answer the complaint.
If this were to happen, you would proceed with the hearing as scheduled. The judge can still hear evidence on temporary issues and make rulings without the defendant having filed an answer.
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.
So, basically they can just not bother to answer or file for an extension to answer and just show up at the hearing and there is no consequence?
Yes, a defendant can show up to a court date without having answered the complaint. There is no requirement forcing a defendant to file an answer. However, the defendant is potentially harming his or her case by not doing so.
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.
Here is a quick background. I filed and noticed the defendant in May. Our first hearing for temporary issues wss June 5 I believe. His attorney got a continuance. Then filed for the additional 30 days to answer the complaint. My second hearing was today. I was told by the judge that nothing could be heard until after the date of the extension to answer the complaint. Even temporary matters. Is this correct? Also, do I have to wait until after the date of the extension, July 24, has passed before I can notice a hearing again? The reason I ask, is the next court date I could get is the 24th, and I would sure like to get these temporary issues heard before I am evicted over lack of PSS and Child Support.
Temporary issues can be heard before an answer is filed to the plaintiff’s complaint, but sometimes judges will wait until the time for any responsive pleadings to be filed by the defendant has ended.
If the extension for the defendant to file an answer to the complaint ends (and includes) 7/24, then you can likely schedule a court date now for any date on or after 7/25.
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.
So, today is the 26th and the extension to answer the complaint was until the 24th. I called the Clerk’s office and nothing has been filed. Additionally back on the 10th, my stbx’s attorney said he would have a settlement offer for me before the 24th. Is it unusual for an attorney not to do these things? Also, since they missed the deadline for filing a response, how will this affect my case? I guess what I am wondering is will it make them look bad to file an extension, have it coincide with next available date, and then not even bother to file answer? I feel like they are trying to “starve me out” financially, so to speak. Can I mention this timing of things to the judge?
Also, am I mistaken, or does N.C.G.S. 1A-8 (d) state that if the stbx does not deny my contentions listed in the original complaint, by way of an answer filed with the court, he is in effect admitting to them?
The fact that your spouse did not file an answer on time will not affect your case or your position. If will however, affect your spouse’s case. You are correct that if an answer is required to be filed and one is not filed, then it can be deemed that the allegations in the complaint are admitted by the defendant.
It is possible that your spouse’s attorney was not able to follow through in getting you a settlement offer by the 24th for various reasons, but you might be able to expect it any day now. If not, you are always free to make your own settlement offer first.
You can mention the timing to the judge, but if you have a court date already scheduled, this argument may not be as important. Your case can still proceed regardless of whether or not your spouse filed an answer or other responsive pleading to your complaint.
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.
That is what I was hoping. I noticed my new hearing today. I just want to plant a seed of suspicion in the judges mind with the timing issue. I am hoping that the timing, combined with the failure to answer the complaint, and the attorney’s failure to provide a settlement offer, will set me up to seem more honest, reasonable, and cooperative than the defendant. Although ultimately the judge and the law will rule the day, perception has to be a factor in the judge’s decision making process. Thank you all so much for providing the services you do, your help has been invaluable.
Sorry to revisit this issue again. I have a court appearance on the 9th and need to make sure I am on the right path. With the 30 day extension, my stbx, who is represented, was supposed to have his answer in by the 24th of July. I called the court on the 26th and no answer had been filed. I found out today that one was filed on the 27th…3 days past the extension deadline. Can I go in front of the Judge and argue that his answer should not be considered because he filed for the extension and didn’t manage to get it in on time? And following that train of thought, can I then argue that since he then essentially has no answer on record, he must be admitting to the allegations in my original complaint…otherwise he would have gotten his answer in on time. And what statute would be applicable?
Yes, you can make these arguments as your present your case to the judge.
The NC Rules of Civil Procedure apply here:
- Rule 8(d) states that allegations are deemed admitted if not denied.
- Rule 12(a)(1) states that a defendant shall serve an answer to a complaint within 30 days.
- Rule 6(b) states that a party may extend the 30 day time limit if the motion is made prior to the current 30 day period expiring.
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.
Thank you. Just what I was hoping for.
The answer arrived in the mail today, date stamped by the court with the 27th, so I will be arguing to have it stricken from the record. When reading through it, it of course denied pretty much everything. One of the allegations has to do with having an “illicit sexual affair” and cohabitation with his girlfriend post separation. His answer denies this in part. I can easily prove both with text messages from the defendant. Can, during my argument to have the answer stricken, basically accuse the defendant of committing perjury by submitting a knowingly false answer and plant a seed of doubt in the judge’s mind that all of his testimony, affidavits, etc. may be suspect? And is there anyway to use this against the attorney?
The arguments that you have explained here will be better used at trial when you are under oath and the judge is hearing a particular issue or claim. During a trial would be the appropriate time to bring up these issues because he will be testifying to one thing and you may be able to prove that he is not testifying truthfully with the evidence you have.
The attorney has likely not violated any ethics rules because at the time of the filing of the answer, the attorney is only privy to the information he or she receives from the client. So you would not be able to use this information against the attorney but you could against your spouse during a hearing/trial.
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.
Here is what I am debating strategy wise. In my initial pleading I asked for sole legal and physical custody. In his answer he asked for joint custody. I have a decent case for sole custody as it is, given his and his live in girlfriend’s pasts. However, I thought if I got his answer stricken, then effectively he never asked for joint custody and through lack of response admitted that my pleading’s sole custody request was correct. Or, is it better to let his answer stand and try to catch him perjuring himself on the stand by using his answer against him. His own text messages have him either way. Or, best case, can I have it stricken, and then somehow when he is under oath basically say “Look, see that answer I had to have stricken…he was perjuring himself there…you can’t trust him.” Any thoughts?
Also, can I file for attorney’s fees under a separate pleading? They were left out of the first one as I am currently unrepresented. And if I get the answer to my original pleading stricken, I don’t want to amend it and give my stbx a second chance to respond to it.
You can make the argument that your allegations should be deemed admitted since he answer and counterclaim was not filed timely, however, a judge will likely make a determination for custody based on the evidence presented at trial and not based on the pleadings by themselves. It would be better practice to proceed at trial and impeach/contradict his statements under oath with the evidence that you have, while making the argument that your allegations should be deemed admitted during your closing argument.
If you retain an attorney, your attorney can file a motion in the cause for attorney’s fees. The complaint can be amended, with permission from the judge, and you would only add on the attorney’s fees portion (which would not give the other party an opportunity to re-respond to the entire complaint).
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.
Okay, I will have to think about it. Since this hearing is for temporary matters, I don’t know the time constraints and may not want to risk trying to impeach him on the stand and running out of time. And I may very well have other means to do that anyway, later when we go into permanent issues. Plus I am not sure that if I wait until he is on the stand, that I am good enough to not get blocked somehow by his attorney. But, it is a great thing to know that once stricken, they cannot have “another bite at the apple.”