The background: My wife and I have been separated for just over a year, are getting ready to file for divorce, and we plan to use a Pro Se packet, no lawyer. We have no children, no joint bank accounts, house and cars all in just one of our names, nothing in both of our names and she has completely moved out, taking all of the belongings she’s interested in.
We speak regularly, there is no animosity, and we are in agreement over how to divide our assets - Effectively, if it’s in your name, it belongs to you. The only thing without a “title” would be the dog and we’ve agreed on who will keep the dog.
On to my questions:
First, Is there a way to get to the point of scheduling the court date in just one day? Specifically, is there a notary available in the Durham County Courthouse? My understanding of the process is:
File the Complaint, Civil Action Cover Sheet, Affidavit for Judicial Assignment, Civil Summons, and Servicemembers Civil Relief Act.
The Plaintiff serves the Defendant, Defendant gets an “Acceptance of Service” form signed and notarized, then filed with the court
The court can give you a court date
Plaintiff hands the Defendant the Notice of Hearing form.
Wait for the court date…
We intend to walk into the courthouse together to get things filed but due to the order of the process I know we will have to file some forms, go get the acceptance of service form notarized, then return to the clerk to file that form before we can get a court date. Any advice on how to make that process as easy as possible is welcome.
Second, we do not intend to create a separation agreement. My understanding is that with an Absolute Divorce with no separation agreement then you waive all claim to ED. If we proceed with that route, am I correct in assuming that we are by default agreeing to what I mentioned above, that anything in just one of our names belongs to that person and the other has no claim on it? Is there anything that I’m misunderstanding?
I know how these things vary from case to case so I tried being detailed. I apologize if it’s long winded!
There is no way to be able to schedule the absolute divorce court date the same day that you file the complaint. You must give the defendant 30-33 days to respond to the complaint (depending on how the defendant is served). The only way to shorten that amount is if the defendant files a waiver of his/her right to answer the complaint.
You will need to call the clerk’s office to see if there is a notary available at the clerk’s office. Most banks provide notary services for customers that also have accounts with the bank.
Your process is generally correct. You must serve the complaint on the defendant by either sheriff deputy or by certified/registered mail. If the defendant is willing to sign an acceptance of service, then the defendant does not need to be served by either sheriff deputy or certified/registered mail. You can simply hand the complaint and other filing documents to the defendant. The acceptance of service that the defendant signs states that the defendant is agreeing that he or she has been served as if served by sheriff deputy or by certified/registered mail.
Also, when you file a notice of hearing you must also file a certificate of service which indicates how you served the defendant with the notice of hearing: by mail (does not need to be certified) or by hand delivery, what address you served the defendant, and the day that you served the defendant.
If the absolute divorce is granted without a claim being made for equitable distribution (ED), then neither spouse will be able to file for ED in the future and neither spouse will be entitled to a court dividing the property. This means that the property in your possession becomes yours and the property in your wife’s possession becomes hers since neither of you have any jointly titled property.
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.
Anna, thank you so much for the quick and thorough response. This was perfect.
My thought on getting the court date the same day as filing was that if my wife and I go together, she files the complaint and immediately hands me the filing documents and summons. Then, I go the the notary to sign an Acceptance of Service form and come straight back to the clerk to file that, at which point I thought the court would be free to schedule a date. So not filing a waiver of my right to answer, but immediately filing my acceptance of service.
Thank you for the clarification on the ED point. You have been very helpful.
You cannot get a court date on the same day as filing if the defendant only files an acceptance of service.
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.