I have been served with a divorce complain. The complain has many errors, like stating I was married in the 1800’s (typo) and that I am not a citizen (I am) and other inaccuracies. I want to file a motion to dismiss and have them do this right. On what grounds can I do this? Just say the information is inaccurate will suffice? I need to do this myself if possible! I know they will correct the complain and file again, still the extra time would help me. Thanks for any help!
You need not file a motion to dismiss, but rather an Answer and Counterclaim which responds to the allegations in the Complaint by denying their accuracy and alleging the true facts.
Will filing an answer and counterclaim buy me some extra time? Or should I also include a motion to continue and require more time to respond?.
No, but you may file a motion to extend time which gives you an additional 30 days to respond (file your Answer and Counterclaim.)
If I respond with an answer and counterclaim, do I need to provide supporting evidence of my counterclaims at the time of filing or just state the facts and if required provide evidence later? Some things are trivial, like the marriage date being typed as being in the 1800’s, not much need to prove that’s wrong… but citizenship yeah, I could provide a copy of my passport. Is that needed at this stage?
Thank you!
No, evidence is presented at trial. Pleadings are simply an assertion of what you intend to prove.
Thanks for all your previous help on this! Got the extension filed OK… now I need to respond. Can I deny the claim we married in the 1800’s (obvious typo) and NOT provide the real marriage date, just say it is wrong? (there is a reason, I’m not just being obnoxious…) And should the answers and counterclaims stated together in my response, or should I first state all the answers, and then state all counterclaims, in two separate parts?
Thanks again for your invaluable help!
You should deny the alleged 1800’s date of marriage, in your counterclaim allege the correct date.
The answer comes first in numbered paragraphs corresponding to the Complaint, and then comes the Counterclaim.
Thanks!
You are welcome.
After I filed my answer and counterclaim, I got a “notice of intent to request entry of divorce judgement”. It seems to me that the other part is missing something. Shouldn’t they have answered first, or can they send this regardless? I have about 5 days to answer. Does this mean there will be no hearing? I want one, and I want my ex to be there in person, is there a way to make sure that happens?
If there are issues of fact there will need to be a hearing. You should request one in your response and contact the clerk to obtain a hearing date.
thanks for your response. Is my ex required to be at the hearing or can she be represented by counsel alone? And was the intent of the “notice of intent to request entry of divorce judgement” to forego the hearing?
She can attend alone or with counsel. Without seeing the notice I cannot say for sure, but it was likely an attempt to forgo the hearing.
Thanks again. What does it entail to request a hearing, just stop by the courthouse and get a date/time?
You may contact the clerk for a hearing date, and will need to notice the hearing by filing a notice of hearing, and a calendar request (if necessary in your county). You will also need to serve those documents on the other side.
This is in Wake county. I went to the courthouse, and they told me since I had filed an answer and counterclaim, it would automatically go to a hearing. I asked if I needed to request a date, they said no. I talked with counsel for my ex, and they confirmed that there will be a hearing, that the notice to enter judgment by clerk was a moot point now, and that as the “moving party” they would file the notice of hearing. Does this make sense?
Yes, however either of you can file the notice.