Wife's Attorney says my Extension to Divorce Complaint counts as counterclaim


#1

I believe I am correct, but my soon to be ex’s attorney is telling her that I’m fighting the divorce because I filed an extension.

Here are the basics:

  • we signed a separation agreement over a year ago, we’ve both upheld it; we split custody 50/50 and made a clean break of finances; no alimony; I pay half of my son’s monthly expenses (not child support per se)
  • after 1 year of separation her attorney filed complaint for absolute divorce, but it did not include custody or property division, or the separation agreement
  • I filed a motion to extend 30 days, no counterclaim or response (I got the form from an official NC legal website with form downloads, it is simply a motion and order to extend, with the reason being I needed ample time to review information and/or seek counsel…that’s it, nothing else on it)
  • I notified her that I want to include our separation agreement in my response so that it can be included in the divorce decree (from what I’ve read this would keep from having property and custody left ‘open-ended’)
  • I had read that both parties need to agree to include the separation agreement in the divorce decree, is that correct?
  • she says her attorney told her that my extension was actually contesting the complaint (and I didn’t know it) and now the case has to go before a judge; they claim that I’ve unwittingly “complicated” things

As far as I understand, I ‘could’ still file a response and agree to the complaint or I could not respond (stupid) but either way absolute divorce would be granted, OR I could respond, agree to complaint but also include the separation agreement, and it would still be granted without going before a judge (since they do not need to evaluate property/$ statements or custody disagreement, the separation would just be added to the divorce decree).

I figured adding the separation agreement was better to cover myself than an absolute divorce that mentions neither property or custody – I don’t want to have to go back to court later for those things because they were left out.

Thank you for any help you can provide!


#2

Simply filing a motion for extension of time to answer a complaint is not a counterclaim and it is not indicative of future counterclaims although typically in practice, when such a motion is filed, it’s usually a good indicator to the plaintiff that counterclaims are coming, but this is not always the case.

If your separation agreement addresses the property division, custody, child support, etc., then you do not need the separation agreement to be incorporated in the divorce judgment. Unless your separation agreement states otherwise, it will remain valid even after you are divorced and the issues of property/finances and child custody are not left open-ended. A binding separation agreement is still enforceable even if those same terms are not in a court order.


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.


#3

Thank you so much, that is extremely helpful!!! :+1:

My hesitation to simply agreeing to the absolute divorce is due to the fact that there is NO detailed information other than the required basics (i.e. marriage/sep dates, both parties want divorce, child/birth-date). I was of the general legal mindset that more information = being ‘safer’.

So, including the separation agreement in the divorce decree doesn’t afford any more protection? (apart from the offense for failing to follow it changing from breech of contract to contempt)

Would including it in the decree keep her from trying to modify it later? (Trust is in short supply, especially with her lawyer). For example, are custody, alimony, or child support things she could file a civil motion for later on, to add or modify? I’d expect she’d need to prove extenuating circumstances in order to justify a modification, if it’s even possible.

The only information I found was regarding alimony which appears it can’t be added post-divorce.

Thanks again, this is a life-saver for those of us who have scoured the internet, your site/forums, and government legal resources and are still left with general questions.


#4

Incorporating the separation agreement into the absolute divorce judgment doesn’t necessarily give you more protection, rather it changes it from a contract (enforceable by a breach of contract lawsuit) into a court order (enforceable by contempt of court and filing a contempt motion).

A separation agreement can only be modified if the terms of the separation agreement state that amendments are acceptable and both parties agree. A court order for child custody, child support, and alimony can be modifiable upon a showing of a substantial change in circumstances. A court order for equitable distribution can never be modified. So in some instances, it can be easier to modify a court order than a separation agreement. However, anytime there are child custody or child support terms in a separation agreement, one of the parents can always initiate a new child custody and/or child support action in court regardless that the terms are stated in a separation agreement (i.e. a contract).

You are correct that once an absolute divorce is granted, alimony can no longer be requested.


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.


#5

Thank you again!!! This was extremely helpful and reinforced that what I had gathered via online research was in-fact true (its surprisingly hard to verify much of this information online).

I hope this thread also helps others with similar questions/situations, as I know your forum does…if my needs progress beyond their current state, I will certainly be contacting your firm.