I have been served with papers (the legal “complaint”) for absolute divorce from my H’s lawyer. It is dated for one year and a day after our legal separation, however my H signed the Verification document 10 days before that (before our one year was up), and the attorney apparently notarized that signature at that earlier date, as well. .
On the Wake County Clerk of Court website it is stated that these documents cannot be signed or notarized until after one year and one day. So I am curious if, legally, I may use this issue to have that complaint thrown out? If so, can I want until close to the 30 days are up to do so?
Thanks~
Sunny
Yes, you can file a motion to dismiss.
Yes, you can wait until the end of the 30 day period, but the plaintiff can file a motion for summary judgment 30 days after commencement of the action. Depending on the date of service, this means that he could possibly file the motion and have the divorce entered before your 30 days to respond have elapsed.
Thank you so much Kathleen. So as I understand what you’re saying, I can indeed file a motion to dismiss. And, I will need to be careful to file well enough in advance (several days to a week?) of the 30 day limit to not risk having him proceed without my having a chance to respond to the complaint itself?
My assumption is that once the original filing is dismissed, he will need to go through the whole process again, from the beginning?
Is a motion to dismiss a simple process I can take care of myself through the Clerk of Court?
Thanks ~~
Sunny
The form for the motion should be simple, but getting it calendared may be tricky.
And yes, the only likely outcome is that he will have to refile.
Thank you for your response. I see the rule posted at various places that Verifications may not be signed and notarized until the 1 year and 1 day is up, but am unclear on exactly which Statute demands this. Will I need to offer a specific general Statute or Rule in my motion to dismiss or it it enough to show that the date is in fact less than the requited year?
Thank you~
I am just noticing that I misread your question. How do you know that he signed it before the year and a day if it is notarized on the correct day?
Thank you for your reply and I am sorry if my choice of words has led to confusion. I’ll try to be more clear in my description of the issue I’m inquiring about. To reiterate, the Complaint for Absolute Divorce was dated in handwriting and signed for the (presumably) correct date, a year and a day after our separation. That seems totally fine.
However, looking on down to the bottom of the page 2 of the complaint in the “Verification” section of the document… My stbx’s signature is there as plaintiff, along with both the stamp and signature of his attorney/Notary Public (one and the same) , and that is dated in handwriting for a different, Too Early date than the rest of the form. In other words, according to the, in quotes, logic, of document, the whole Complaint was notarized ten days before it was drafted and signed.
On looking back over the documents I received, it occurs to me that that that last page of the Complaint is in a different type print, than the rest and is also NOT stamped with the :
"FILED 2012 July 20 … date, and isn’t stamped with the Court Case file number, and none of the documents bear a signature or stamp of whom they were filed by.
I am now concerned that this 3rd page of the complaint is NOT the original as filed. !!! It makes me wonder just what is on the 3rd page of the Complaint that actually WAS filed.
Okay, sorry for the confusion. You simply need to state why you believe your motion to dismiss should be granted, i.e. that the verification was signed less than a year and a day after your separation. You can include it with your answer to the complaint.
As for your other concerns, I’m not sure what the standards are in your county, but in a lot of counties, the “filed by” portion of the file-stamp are not completed, and usually, the file-stamp is only placed on the first page of the document.
Okay, sorry for the confusion. You simply need to state why you believe your motion to dismiss should be granted, i.e. that the verification was signed less than a year and a day after your separation. You can include it with your answer to the complaint.>>>
That is SO very helpful, THANK you! So that way I will still get my Answer recorded and on the record in case the Motion to Dismiss is not granted? This sounds like a win/win scenario. I believe that an attorney will be appearing in court for my stbx and I’m not up on which of the processes they will use, Summary Judgement or otherwise.
As for your other concerns, I’m not sure what the standards are in your county, but in a lot of counties, the “filed by” portion of the file-stamp are not completed, and usually, the file-stamp is only placed on the first page of the document.<<<
I was at my (Wake) courthouse today to see the original docs that were filed. What you say is correct, and in my case the time stamp happened to be on 3 pages but not the 4th (which was the Verification). I did see that the filed papers are the same as what I received.
I filed for a 30 day extension today because I’m not sure yet how best to proceed in my case. In any case, I am very appreciative of your information and may yet need to sign up for your online service. Would that monthly service include legal opinions regarding clauses in my existing, notarized separation agreement?
SunnyDay
Yes, with Rosen Online, you could get forms for the answer and motion to dismiss, and you could have questions answered about your agreement.