Divorce in North Carolina can be a complex process. This guide offers some insight into the divorce procedures and legislation in North Carolina, with examples. Choose from the links below to jump to the sections of this page that you are interested in viewing or simply scroll down the page.
A. Pleadings and Service of Process
B. Venue and Jurisdiction
D. Hearings and Trial
With the possible exception of the court papers required to obtain an absolute divorce, the procedure for drafting, filing and serving most other litigation documents is too complex and too fraught with legal peril to be attempted by even the most educated laypersons. The law has many hypertechnical rules that cannot be understood, or sufficiently mastered, without long legal study. The technical rules of the legal system govern not only what is known as the “substance” of an area of the law, such as child support, but also what is know as the “procedure.” The substance of the law of separation and divorce has been discussed in the separation section of this website. Now we turn to the procedural law, or the system of rules for having substantive law declared and enforced by the court system.
Put most simply, procedure is the entire body of rules directing litigants about how to use the judicial system. The rules dictate, for instance, who can file a claim or some other paper, when it can be filed, where it must be filed, how it must be filed in order to be validly brought before the court, how it can be served on the other party, the time limits for responses to the claim, how a hearing is to be noticed, how a trial is to be conducted, how a remedy granted by the court is to be enforced, and similar matters. The principal peril in failing to appreciate such procedural rules is the dismissal of a litigant’s claim for lack of adherence to the rules or, possibly worse, the imposition of sanctions against a litigant who makes an inappropriate move at the courthouse in terms of procedure.
Some procedural rules have been enacted by the North Carolina General Assembly into statutory law. For civil cases, the singlemost important set of statutory rules are the Rules of Civil Procedure. Other procedural rules have been developed by the courts; these rules are not embodied in the statute books. Some of these judicial rules have been developed statewide. Important examples of rules of this type are the General Rules of Practice for the Superior and District Courts and the Rules of Appellate Procedure. Some of the judge-developed rules apply, however, only to the individual geographical judicial districts in North Carolina. These rules are called “Local Rules.” The Local Rules may vary from district to district. For example, under a recent local rule applicable to actions for alimony in Wake County (Judicial District 10), the party seeking alimony is required to file a Financial Affidavit along with his or her claim for alimony. In New Hanover County, and in a number of other counties, the financial affidavit can be presented to the other side as late as the day of the actual alimony hearing.
This website cannot survey the whole welter of complicated procedural rules that lawyers follow, nor can it discuss all the local rules that have been developed for each judicial district in North Carolina. These subjects would cover many books. Much of the content of those books is less than transparent to legally untrained spouses attempting to fathom the procedural rules of the judicial system for purposes of a marital case. Instead, this book will touch on some basic procedural law, from the perspective of family law, so that couples finding themselves engaged in litigation will have a more thorough understanding of the legal process. Like litigation overall, the procedural rules have an engine of their own, usually introducing frustrating delay and additional expense into the process of separation and divorce.
A. Pleadings and Service of Process
A civil lawsuit is started when someone or some agency files a complaint. The complaint makes certain factual assertions (which are known technically as “allegations”) to establish the complainant’s reasons for believing he or she is entitled to the relief being sought in the complaint. A complaint may contain a single claim (also known as a cause of action), or it may contain multiple claims. Thus a complaint could seek custody and/or child support alone, or in combination with other claims.
In family law matters, there are ordinarily no strict time limits (set by “statutes of limitations”) within which a complaint must be filed. Basically, someone files a complaint at the moment he or she decides the court needs to become involved. Sometimes the complaint is filed to get the other side’s attention, as an incentive to serious work on settlement. Other times the complaint is filed because there is no other way the case is going to get resolved.
The person or entity filing a complaint is known as a “plaintiff” or complainant. The complaint is filed against one or more “defendants.” In family law matters, of course, most complaints are filed by one spouse against the other spouse. In child support matters, however, the child support enforcement agency may be bringing the civil action on behalf of the State acting for the child or the parent.
The defendant then generally has thirty (30) days from the date the complaint is served on him or her to file either the “answer” to the complaint or to file for a 30-day extension of time in which to answer. The answer admits or denies plaintiff’s allegations (or otherwise explains defendant’s contentions as to plaintiff’s factual allegations). The answer may also raise counterclaims. If plaintiff, for instance, has filed a claim for custody in her complaint, defendant might counterclaim for custody in his answer. Where the defendant raises one or more counterclaims, the plaintiff then has thirty (30) days in which to file either the “reply” to the counterclaims or to request a 30-day extension of time in which to reply.
These three papers — the complaint, the answer and the reply — are called “pleadings.” Because it is relatively easy to draft and file your own divorce complaint, we here explain the steps you would use, if you represent yourself, in preparing and filing your version of the Sample Divorce Complaint. This explanation should also serve as a basis for your understanding how attorneys put together other kinds of complaints.
The complaint has three parts: the complaint itself, the verification, and the summons. Court rules require that papers filed with the clerk of court be legibly produced on plain, white 8 1/2 inch by 11 inch letter-size paper. Typewriting is preferred but not required. When you draft your complaint, you should follow the format of the Sample Complaint as closely and exactly as possible.
At the top of the first page of the complaint, you put the caption. The caption names the county and state, the particular division of the court, the plaintiff and defendant, and the type of document it is (“Complaint”). A caption of this type goes on all motions, pleadings, and discovery papers in a litigated case. Using the Sample Complaint, insert the appropriate county for your filing, your name and the name of defendant spouse, and the word “Complaint”. The clerk of court will supply your case with a docket number at the time you file the complaint. A divorce complaint, and the other types of family law complaints discussed in this book, is always filed in the District Court Division of the North Carolina General Court of Justice. Put those phrases in your caption as well, as shown on the sample.
Except for the title of the document (for example, “Complaint”, “Motion”, “Notice of Hearing”, “Certificate of Service”), the caption will remain identical throughout your case. On any subsequent court papers, always copy the file number and the names of plaintiff and defendant exactly as they appear on the original complaint. In order to file a complaint, you need to have an original and at least two copies. The original is filed in the court file. One copy is served on the defendant. You keep any other copy or copies.
The content of your divorce complaint should follow the Sample Complaint, modified to make it correspond to your facts. Following the caption, you write out your factual allegations in consecutively numbered sentences or paragraphs. Early in the allegations, you want to state the place of residence for yourself and for your spouse, including county and the state. If one of you lives in another state, it is enough just to recite the name of that state without the county (“Defendant is a resident of the State of New Mexico”).
But remember that the divorce complaint must be filed in a county of North Carolina where either you or your spouse is living at the time the complaint is actually filed. One of you also needs to have lived in North Carolina for at least six months prior to the filing of the complaint. That is the residency requirement for the court’s obtaining jurisdiction over an absolute divorce. Thus your complaint also needs to say which of you (or that both of you) have lived in North Carolina for at least six months: “Plaintiff [or Defendant] has been a resident of the State of North Carolina for more than six months next preceding the filing of this action.”
Another required allegation is your date of marriage. If you do not remember the precise date, you can say “on or about November 11, 1984″ or “in November 1984.” In other words, an estimate is sufficient. You can also include information about where you were married, although the statute does not require this information. The statute does, however, require that you allege the date of separation. You can put this information all together, if you like, and say something along these lines: “Plaintiff and Defendant were married in November 1984 in Charleston, South Carolina; and they lived together as man and wife until July 5, 1995, when they separated.”
Remember that you must have been separated for at least one full year before you verify your divorce complaint. If, say, you were filing your complaint on July 6, 1996, and the separation was pretty much only a year ago, it would be best to pinpoint the date (“on July 5, 1995″). If, on the other hand, you are filing your complaint on July 6, 1996, and you separated several years ago, it would be sufficient to be less exact about the date (“on or about July 1, 1993″ or “in July 1993″). You are also required to allege that you have remained separated and that at least one of you intended the separation to be permanent at the time you separated. These allegations would look like this: “At the time of the separation, Plaintiff intended that the separation be permanent. Since July 5, 1995 [or: since the date of their separation], the parties have lived continuously separate and apart, and at no time have they resumed the marital relationship which formerly existed between them.”
Next the statute requires allegations about children of the marriage. You say how many children were born of the marriage, their names, and their birth dates. If you and your spouse are childless, you need to say: “There are no children of this marriage.” Finally, if you want to change your name as part of the divorce, you need to include the allegation that you desire to resume your maiden name (or the name of a prior deceased husband, or the name of a prior husband with whom you had a child of that surname).
The next part of the complaint, after these required allegations, is called the “prayer for relief.” Begin the prayer for relief with words like: “WHEREFORE, Plaintiff requests that . . . .” In a simple divorce complaint, you will usually have only three or four prayers for relief. These also get put in separately numbered sentences. First, you ask that Plaintiff be granted an absolute divorce from Defendant, and that the marriage existing between the parties be dissolved. Second, you ask that the costs of the action be taxed to Plaintiff. The costs of the action are the filing fees (presently $50.00 in civil district court in North Carolina). This is a standard request in divorce actions, and should be included. Third, you ask to take another name, if that is your desire. Finally, you pray for “such other and further relief as the Court finds just and proper.” This final request is also standard in divorce actions, although it has no real purpose.
After the prayer for relief, create a line for your signature. You sign the complaint, as well as the verification page, using your name as you have inserted it into the caption. You can use your full name, or your name with initials, whatever name you generally go by. But be sure your name appears the same throughout the complaint, including the signature line. Under the signature line of the complaint, put the phrase “pro se” (signalling that you are representing yourself), followed by your complete mailing address and telephone number. You may omit the phone number if you don’t want it to disclose it.
The required verification page for a divorce complaint is also shown on the Sample Complaint. This verification will be the final page of the complaint. It is your oath, signed before a notary, that the factual allegations of your complaint are all true, or true to the best of your knowledge. The notary need only sign the verification page of the original complaint, to which he or she adds the notary seal. Copies of the complaint and verification page can be by xerox. This verification is a statutory requirement for absolute divorce. If your complaint is not verified, the judge will not grant you a divorce.
When you go to the courthouse to file a complaint, you need to take along at least one original and two copies of the verified complaint. You will also need to have cash, certified check or money order for the total amount of the filing fee. The current fee for filing a civil district action in North Carolina is $50.00, payable at the time the action is presented for filing.
You will also need a white- and two yellow-colored summonses. The summons is a standard form used in all the counties of North Carolina; you can either pick up the form ahead of time at the courthouse or you can fill it out when you go to the courthouse to file your complaint. The summons contains a caption almost exactly as it appears on the complaint itself (state, county, level of court, file number, parties’ names, with addresses added). The summons also contains standard language telling the defendant that a complaint has been filed against him or her and that the thirty-day period for answering has begun to run. Plan to use an address for defendant where you think he or she can be located for service of the complaint and summons. That can be a home address or a work address or whatever address might work.
The complaint is served at the same time, or within five days of, service of the summons (also referred to as the “service of process”). As explained above, the summons is the official court “cover sheet” for the complaint, naming the parties and their addresses, the county, and the case file number. It also contains certain required instructions to the defendant. The summons for a complaint, which is the pre-printed form that you or your attorney fill out, is signed, dated and stamped by the clerk of court when it is clocked in.
When you go to the courthouse with all your paperwork ready to be filed, the clerk will help you organize everything and get a case number assigned to your divorce action. After the filing of the complaint at the courthouse, you next have to be concerned with formally delivering the complaint to your spouse. This legal formal delivery is called “service.” As mentioned above, when the document being delivered is the summons, that is referred to as “service of process.” The rules for service of process may seem complicated to you, but you need to be acquainted with the methods of service and the associated rules. In most cases, you will pick just one method for service and that method will work.
In North Carolina there are four permitted methods for serving the complaint and summons on an individual. Each method works a bit differently, but the same principles apply. The papers get delivered to the defendant; and there is some document created showing how defendant got served. The defendant can be served personally by either registered (certified) mail or by sheriff or other law enforcement officer (or, in some instances, a private process server). If a defendant is represented by an attorney, the defendant may also consent to service on his attorney in what is known as an “acceptance of service.” The acceptance of service may be by defendant or his or her attorney, on defendant’s behalf.
Service by certified mail costs whatever the post office charges you for that service. Service by sheriff is approximately $5.00 in most North Carolina counties. Service by one of these personal methods will take as long as it takes the defendant to sign for his or her mail or as long as it takes the sheriff to locate defendant at the place you have asked that defendant be served. If you want to use service by sheriff in another county and don’t want to go there yourself, you can simply mail the paperwork to the sheriff’s office. The addresses and phone numbers for sheriff’s departments in all North Carolina counties are listed on this website. In addition to payment for the service fee, you can also submit a note with hints about when the sheriff’s deputy might find defendant at the designated address or how the deputy can find the place of service, if it might be a bit hard to find.
The most commonly used form of service these days, however, is certified mail. Unless you know your spouse is going to refuse to sign for certified mail, try that method first. Using certified mail should be cheaper and will probably be faster than using the sheriff. It is also less hassle for you, since you don’t have to contact the sheriff’s department about attempting service and then checking on whether the sheriff got service.
When service is by certified mail, the post office sends a green card back to you once defendant has signed for the piece of mail. Once you receive the green card, you need to check that the card has been signed and then you need to create an “Affidavit of Service by Certified Mail” to file in the court file. This affidavit should be in essentially the same format as the Affidavit of Service. You attach the green card to your notarized affidavit when you file the affidavit.
File the affidavit by going back to the courthouse, or mail it to the clerk with a request that it be placed in your court file. Be sure that the case number appears at the top right of the affidavit so that it will get into your file. Just in case, though, the affidavit gets lost or misfiled at the courthouse, you should keep a copy to take along with you to your divorce hearing. The judge won’t grant your divorce if proof of service is missing from the file or if you can’t produce proper proof of service on the day of the divorce hearing.
A final, alternative method for service can be used if one of these other methods has been tried and failed. That method is service by publication, in which a notice regarding the action is placed in the newspaper in the county where defendant last resided. This alternative method for service is technically more complicated than the other methods, so that it may be difficult to effectuate without the assistance of an attorney. Service by publication also increases the standard waiting period from thirty to forty days (measured from the date of the first such newspaper notice).
Notice that a complaint cannot be served by regular mail, even though other pleadings and other court papers (such as a motion in an existing action or discovery documents) may be so served. If a plaintiff fails to serve the defendant, the court may not acquire personal jurisdiction over the defendant; and the action will not be allowed to proceed. An action in which plaintiff has not served defendant will lapse, unless the action is continued in effect by a second summons (endorsement on the summons or by an alias and pluries summons).
You want to start trying to serve the summons and complaint on the defendant right after you file your action. If you haven’t gotten service in thirty days (if, for instance, certified mail has been returned to you or the sheriff returns the summons unserved), you will make out the second summons to try service again. The second summons looks like the original summons, except that the box marked “Alias and Pluries Summons” will be checked off. In the next round for attempted service, you will perhaps choose a different address for service, or you may try a different method for service. Any of the four methods for service remain available to you: (1) service by certified mail, (2) service by sheriff or other law enforcement officer, (3) voluntary acceptance of service by defendant or defendant’s counsel, and (4) service by publication.
B. Venue and Jurisdiction
Put most simply, venue is the procedural law telling litigants the proper county, or counties, in which an action may be prosecuted. In other words, venue rules dictate which of North Carolina’s one hundred counties is the proper county or counties for your action. If not objected to within the assigned time frame, however, an action filed in the wrong county may be allowed to go forward.
For purposes of absolute divorce and equitable distribution, an action is properly laid in the North Carolina county where either party is resident. By way of illustration, if you live in Chatham County and your wife moved to Maryland after the separation, venue for absolute divorce and property distribution in North Carolina is proper only in Chatham County for a claim filed after your wife moved out of the state. That would be true even if you had both lived your entire married lives in Forsyth County; and you, too, had moved to Chatham County after you sold the marital residence. If your wife had moved to Watauga County instead of to another state, venue would also be proper in Watauga County. For purposes of custody and child support, venue is proper where either parent, or any child, resides.
The principles discussed above apply where there is not already a prior action pending in another county. Let’s say you litigated custody and equitable distribution with your prior spouse in Guilford County in 1995; but since then each of you has moved to some other county in North Carolina. In such a case, a motion in the cause in the custody action (for, say, a change in the custodial arrangement based on changed circumstances) might first be brought in the original county. Either party could then also move for a change of venue, based on the convenience of the parties or witnesses. If you thought your spouse would not object to venue in a county other than Guilford, you could always try to file your motion in the cause in another county where you or the child reside. If venue is improper in the county where an action is brought or a motion filed, the case is subject to possible dismissal based on improper venue. However, if the other party does not object to an improper venue prior to filing an answer, the objection is waived. The case will then proceed in the county where the action was originally brought.
Proper venue for an action based on a new cause of action (such as absolute divorce based on the completion of the one year of separation) is always proper in the county of either party’s residence. Even with proper venue, however, the other party can seek to persuade the court to transfer venue to a more appropriate or a more convenient forum.
Jurisdiction is an extremely complex subject, about which many thousands of books have been written. Jurisdiction is quite different from venue, which is basically only the place where suits can happen. Put most simply, jurisdiction is the procedural law telling litigants who can sue and be sued and what sorts of actions may be prosecuted in which courts. Some jurisdictional errors are so fundamental that a case cannot be permitted to go forward even if the other party fails to object to the error. Some jurisdictional defects are more minor, and like venue, can be waived if an objection is not raised within the time for objection set out in the rules.
For purposes of all areas of family law traversed in this book, proper jurisdiction in North Carolina is in the general court of justice, civil district court division. Thus, when you read the case file number on a court paper, and it says “Wake County, 95 CVD 10414″, that tells you the case originated in 1995, it was filed in the civil district (CVD) court and the case was the 10,414th civil district filing in that county in 1995. Less populous counties have far fewer filings than 10,000 in any given year. In Wake County in 1995, the actual number of civil filings exceeded 12,000. These are not all domestic relations cases, of course, as there are lots of other areas of civil law such as personal injury, property law and contract law.
To make matters even more complicated, there are two kinds of jurisdiction. One kind of jurisdiction is known as “personal” jurisdiction (which is the court’s power to reach the person) and the other is known as “subject matter” jurisdiction (which is the court’s power to reach the subject at issue in a case). Subject matter jurisdiction is the more straightforward of the two types of jurisdiction.
For example, the rules concerning subject matter jurisdiction over custody say that a N.C. district court has the power to hear a custody claim, provided one or more of the following applies: (1) North Carolina is the place where the child has lived for the most recent six months (this is called “home state” jurisdiction); or (2) this State has the most significant connection with the child and at least one parent, in terms of evidence, contacts and the like; or (3) the child is physically present in North Carolina and needs protection based on abandonment or some emergency, or (4) no other State can, or wishes to, assert jurisdiction and it is in the child’s best interests for this state to assume jurisdiction. If none of these bases for custody jurisdiction exist, the court is required to dismiss the action, even if no party moves for dismissal. In other words, a court cannot hear a case if subject matter jurisdiction is lacking, even if all parties are willing for the case to be heard.
Personal jurisdiction is even more complex. In brief, a court can make rulings with respect to a party brought before the court (i.e., a plaintiff or a defendant) where that person voluntarily submits himself or herself to the jurisdiction of the court, as would happen by the filing of a pleading such as a complaint or an answer to a complaint. The court also has power over a party, where court process has been appropriately served on the person and that service is consistent with special state statutes and federal constitutional due process.
An example of the assertion of personal jurisdiction is illustrated by the following. Let’s say you and your husband were married in North Carolina and lived here for the next twelve years, at which time you separated. You remain in this state; your now ex-spouse moved to New York and has remarried. Except for your absolute divorce, there has never been any litigation between you and your ex-spouse. You now sue him, in the North Carolina county of your residence, for child support when his voluntary payments stop coming. The North Carolina court will have personal jurisdiction over your ex-husband, provided three conditions apply: (1) he is properly served with process in New York, (2) some provision of our statutes allow you to “reach” your ex-husband as an out-of-state defendant, and (3) making him answer in North Carolina comports with federal due process. As it happens, North Carolina has a provision in its so-called “long-arm” statutes permitting you to reach a former spouse, out of state, on an issue arising from your marriage here. The fact that your husband lived here for a dozen or more years will probably make it constitutional for the North Carolina court to assert personal jurisdiction over him. Thus, if service is properly made on your ex-husband, the court of North Carolina will have personal jurisdiction over him.
Discovery is a term for the formalized exchange of information that occurs within the context of litigation. This is often a critical process for investigating all the facts in a case. Through discovery, each party can gain a better understanding of the facts in the case and, thus, of the strengths and weaknesses of a particular position. This increased understanding of the facts is gained in discovery through the mandatory disclosure of requested information. Information is commonly requested in discovery because it is in the possession or control of the other side at the time the discovery request is made. Information may be requested to supplement the requesting party’s own information, and to help that party develop the case further. In general, any information that would be relevant, or that would lead to relevant information, can be discovered, provided that the information sought is not otherwise protected against disclosure by privilege law. “Can be discovered” means that the other party is required to furnish the information, unless the party can come up with some accepted justification for not producing the information.
Discovery can be a very powerful tool in developing the facts in a case. If a party does not comply with proper discovery requests from his or her adversary, the court can compel disclosure and, in addition, order sanctions including attorney’s fees for the prevailing party if appropriate. Despite the potential usefulness of discovery, however, the process can also become extremely expensive and time-consuming. Moreover, the party wishing to frustrate discovery can often find ways to delay disclosure or to make disclosures that are not complete or not easy to organize and interpret. A party can also, legitimately or without just cause, seek to raise objections to discovery requests that will further drag out the entire process.
There are a number of methods permitted by the discovery rules, which can be used singly or in any desired combination. The rules permit the following discovery methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things, or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. These methods can be used in any desired sequence, unless the court has ordered a specific sequence. A party may carry on his own discovery regardless of whether the other party is also conducting discovery. In equitable distribution actions, the parties are required by statute to consult with the judge in a “discovery and scheduling conference.” At this conference, a proposed plan and schedule for discovery is worked out, along with any limitations if any on the discovery process in the particular case.
One of the most popular discovery methods is to take someone’s deposition. A deposition can be done upon written questions or orally, by telephone or in person. The person being deposed may be one of the parties, or the person may be a non-party. Questions are asked by the side taking the deposition, usually by a party’s attorney. The deposition is conducted under oath; if taken orally, it is recorded by a court stenographer present where the person being deposed (the “deponent”) is located. In addition to stenographic means, testimony at a deposition may also be taken by other methods, including videotape.
The answers to deposition questions can be used in court for various purposes. Quite often, the answers are used to impeach a witness at the trial who gives answers that are different, contradictory or inconsistent with the answers given by the witness at the deposition. Deposition answers can also be received into evidence in their entirety where the parties have agreed that a witness will not be called to the actual hearing. This often happens when the parties are accommodating a busy professional such as a physician, psychologist, or other expert. In such cases, the side “defending” in the deposition will take the time to cross-examine the deponent in some detail, as there will not be a later opportunity to conduct cross-examination of this particular witness. Depositions may also be used at trial where the witness has died, or the witness lives more than one hundred miles away from the place of trial or is out of the country or otherwise unavailable to testify.
Another method of discovery are written Interrogatories. One side puts together a set of questions, to which the other side responds. Interrogatories, unlike depositions, may only be directed to a party in an action. These questions might be more open-ended than Requests for Admissions. In North Carolina the total number of questions that can properly be posed in one or more sets of Interrogatories is fifty, and sub-parts count as separate interrogatories. The fifty maximum number may only be enlarged by agreement or by order of the court.
An example of three written Interrogatories would be the following question about a person’s employment (“state where you are currently employed, when you began that employment, and how much your current salary is”). Interrogatories are frequently used in divorce litigation to acquire information about financial assets and debts. An example of such an Interrogatory would be a question about bank accounts and balances during a specific time period. The answers to Interrogatories are made under oath.
Another method of discovery is a written Request for Admissions. One party makes written assertions of fact (or assertions as to the genuineness of a document), and requests that the other party admit such assertions. An example would be a request to admit that “on December 12, 1992, you vacated the former marital residence without your spouse’s consent to your leaving.” Under this discovery rule, the answering party is to respond to each request for admission by specifically admitting or denying the matter, or by setting forth in detail why the answering party cannot truthfully admit or deny the matter. The answering party is also permitted to raise objections to the request. If the opposing side fails to respond to the requests within a specified time, the assertions are deemed admitted. This means that a judge could consider the facts so admitted to have been conclusively proven for the purpose of the pending action in which the discovery issued.
Another method of discovery is a Request for Production of Documents and Things, which can only be directed to another party. Often this method goes hand in hand with Interrogatories. For instance, in conjunction with an Interrogatory about bank account balances, a party might request production of all monthly bank account statements over a specific time period.
Requests for Production are surefire ways of obtaining detailed financial information. Such requests can be extremely useful in gathering data regarding pensions and retirement benefits, life insurance policies, and the like. The documents and things being requested must be designated in the request, but can include existing writings, drawings, graphs, charts, photographs, phonorecords and other data compilations. Although there is no technical limit on the number of documents or things that can be requested, the other party is entitled to raise objections about unduly burdensome discovery requests.
D. Hearings and Trials
Lawyers often use confusing terminology to refer to legal proceedings. One of the confusions arises in connection with the words “hearing” and “trial”. The confusion exists because the words can mean the same thing, but not every hearing is also a trial. A hearing is sometimes just another name for a trial. The sort of hearing that could also be properly referred to as a trial is a hearing where evidence is presented by one or both sides.
But trials and hearings do not always mean the same thing. If neither party is presenting evidence, the proceeding would be a hearing in a more limited sense. It would not be a trial. In the context of domestic relations law, the most common non-evidentiary hearings are hearings on motions that raise no factual (that is, no evidentiary) issues. Such motions raise only issues of law.
An example of a non-evidentiary hearing might be a hearing on a defendant’s motion to dismiss for lack of subject matter jurisdiction. At such a hearing, the attorneys could argue pure points of law. No witnesses would be called; no evidence would be submitted to the court. The judge would make a ruling based on those legal arguments. The reason all of this terminology gets so confusing, however, is that there can also be hearings on motions at which evidence is in fact presented to the court.
You can keep all this pretty straight if you just remember that lawyers call all sorts of things “hearings.” “Hearing” is not really a technical term because it doesn’t stand for any one thing. If evidence is presented at the hearing, it might also be called a “trial.” “Trial” is a technical term for one kind of hearing. If the judge is only hearing arguments and there is no evidence being presented, that is not a trial. “Appeal” is a technical term for another kind of hearing; “equitable distribution pre-trial conference” is another technical term for another kind of hearing; and so on.
Whether a case involves just one non-evidentiary hearing, or the case involves a number of preliminary hearings and other trips down to the courthouse appear before the judge, or the court case is a single full-blown trial, any domestic relations case in North Carolina will be heard (or tried) before a judge in civil district court. That judge is a “district court judge.” District court judges in this state have authority over other types of cases as well, including traffic court and certain types of criminal cases.
The time at which the judge is present for the hearing is set by the court’s “calendar.” A court calendar is simply the judges’ schedule for his or her cases. The schedule is on a weekly basis in most counties, although the calendar is typically established for at least several months into the future. In many counties, however, the mere fact that a case appears on the court calendar for a specific day does not necessarily mean that the judge will hear it on that particular day. To get a definite fixed date in many counties requires a so-called “peremptory” setting. A peremptorily set case will be heard on the day or days for which it has been calendared.
Attorneys thus speak of “calendaring” cases, by which they mean picking the tentative, suggested date for a hearing or being assigned a time and date for trial by the court clerk. In some counties, parties “shop” for judges according to which judge is assigned to which courtroom in which week. In counties where judge shopping is permitted, one side may pick one judge for the first hearing, after which the other side calendars a subsequent hearing in front of a different judge. In other counties, judges rotate under an assigned-case system. Once a case is assigned to a specific judge in such counties, the case will remain with that same judge.
The matter of calendaring cases can be relatively straightforward in some counties and relatively more exasperating in other counties. In heavily populated counties, civil district court remains in session every weekday. Cases may even be segregated according to type in populous counties, so that traffic court is held in one courtroom, juvenile court in another room, domestic violence cases in another room, and so forth. But some counties and courthouses are not so large, nor do they have enough district court judges to field multiple separate courtrooms. In some counties, there is not even one domestic courtroom in which some judge or judges are sitting continuously. Domestic court may be held in such smaller counties only several times a month, if that often. As you can imagine, the number and availability of judges and courtrooms might interact in unfavorable ways with the number of cases filed in a county. With very congested civil court dockets, the wait for a trial date can be not only weeks but many months. Even after you wait through the inevitable delay of getting a spot on the court calendar, you may encounter other delays. The examples of reasons for such delays are almost endless. Your case is on the calendar, but other court business dictates that your case cannot be reached that day or week. Your case is on the calendar, but the other side did not get proper notice of the hearing, so the judge agrees to postpone (“continue”) the hearing. Your case is first on the calendar, but the judge gets sick. Or, the judge is ready to hear the case, but one side’s most important witness is unavoidably not available on the day of trial so the trial gets postponed.
Once a case does come on for an evidentiary hearing before the judge, each side presents its evidence in turn. The evidence, in both oral and non-oral forms, is presented through witnesses who are put under oath. The attorneys representing the parties do not testify in a case; the lawyers merely facilitate the presentation of testimony from the witnesses. If deemed necessary to assure the presence of a witness or to compel the production of documents at trial, subpoenas are issued to procure witnesses’ appearances in court and, if applicable, the production of documentary evidence (this is done through a so-called “subpoena duces tecum”). Any person who fails to obey a subpoena that has been served on him or her can be punished by the court.
Plaintiff calls his or her witnesses. Each witness is led through direct examination by the attorney, or the party, calling that witness. Following direct examination, the other side is given the opportunity to cross-examine the witness. After that, the calling party is permitted to ask questions on re-direct examination, which may be followed by re-cross by the other side. In North Carolina, the other side can ask about anything relevant on cross-examination, even if the matter was not touched on during direct examination of the witness. Re-direct examination, however, is limited to the scope of questions asked on cross-examination.
So it goes for each witness. The witnesses in most domestic relations cases are the parties themselves, friends, relatives, and experts testifying about property or children’s issues. Once plaintiff has rested his or her case, defendant calls witnesses; and the same pattern of questioning proceeds. During the witness testimony, the parties are also entitled to offer into evidence documents, photographs and other non-oral evidence. The judge’s decisions regarding the admissibility of oral and non-oral evidence are guided by very complex rules of evidence.
At the conclusion of the hearing or trial, the judge may issue a ruling immediately. In custody cases and more involved property and alimony cases, however, it is not unusual for the judge to take a case under advisement and issue the ruling at a later time. Sometimes the waiting period for such a ruling is a matter of months after the end of the trial. In most child support cases, the judge can calculate the amount of the arrearages or the amount of future child support payments much more quickly. Child support decisions, therefore, are not often delayed for weeks or months as other decisions might be.
Appeal is the procedure for getting a higher court to review the work of a lower court. In most civil cases in North Carolina, appeal from the district trial court is to the North Carolina Court of Appeals. This is an appeal as of right. Provided a party complies with the time limits and procedures for taking an appeal, anyone can obtain review of an adverse trial court decision at the Court of Appeals.
As a practical matter, the appeal to the Court of Appeals is generally the end of the appeal route for domestic relations cases in this state. Appeal from an adverse ruling at the Court of Appeals to the North Carolina Supreme Court is usually not an appeal as of right. Rather, the unhappy party files a Petition for Discretionary Review with the Supreme Court requesting that the higher court review the ruling of the intermediate court. The North Carolina Supreme Court, because of caseload constraints and in the interest of focusing on significant legal issues, declines to review the bulk of the discretionary petitions presented to it. Some domestic relations cases are decided by the Supreme Court, but their number is small. Appeal of right from the Court of Appeals to the Supreme Court is based on either substantial constitutional questions or on a dissenting opinion among the three-judge Court of Appeals panel deciding a case.
In an appeal, the dissatisfied party asks the appeals court to review what the trial judge did to see if the trial judge did something wrong. This is a point you need to understand; the appellate court looks at what the trial judge did to decide if the trial judge committed legal errors. The appellate court does not function as a fact-finding body that re-sifts the evidence to alter a decision that you feel should have gone your way based on the equities of your case.
Laypersons should not try to handle their own appeals, as the only points that can be raised on appeal are wholly legal issues, Moreover, the procedures for raising those points are extremely technical. Attorneys are concerned about the techniques for getting things onto the trial record, in order to preserve those same issues for appeal. Attorneys are also concerned about putting together the Notice of Appeal, the Record on Appeal, and the appeal Brief in the proper manner and within the proper timeframe.
Except for juvenile matters and matters involving termination of parental rights, an appeal begins with the filing of a written Notice of Appeal. In civil cases, the Notice of Appeal must be filed within thirty days from the entry of judgment or order. Within ten days after the filing of the notice, the appealing party must have contracted with a court reporter for preparation of those portions of the trial transcript which are to be submitted with the record on appeal. If no transcript is ordered, a proposed Record on Appeal must be prepared and served by the appealing party (the “appellant”) on the other side (the “appellee”) within thirty-five days from the date the notice of appeal is filed. If a transcript is ordered, the time limit for service of the Record is thirty-five days rom the court reporter’s certificate of delivery of the transcript. A trial judge may enlarge these time limits for up to thirty days.
The typewritten Record on Appeal must be submitted to the other side, agreed to or settled on by the trial judge, and filed with the appellate court within the time periods designated in the North Carolina Rules of Appellate Procedure. The clerk of the appellate court takes care of printing and making multiple copies of the record. Failure to adhere to all these strict time limits can result in dismissal of the appeal.
That is just some of the paperwork required to complete (“perfect”) an appeal, however. The main pieces of paper presented to the appellate court in most cases are the appellant’s and appellee’s “briefs.” A brief is the written discussion of all the legal points being argued on appeal. This is the appellate court’s tool for understanding each sides’s view of what went wrong (or right) with the case at the trial court level. As with the other appellate rules, there are extremely exacting requirements for the format and content of a brief. The brief must cross-reference the so-called assignments of error laid out in the Record on Appeal. Briefs in civil cases must be filed and served within thirty days after the clerk of the appellate court has mailed the printed record to the parties.
Once briefs are filed and served, the appellate court clerk and the chief appellate judge place the case on the appellate calendar. A case may be orally argued, if the court so decides; but the bulk of civil cases are “heard” on the written briefs alone. It is usually many, many months after an appellate case is docketed before it is heard by the appellate panel of judges. It may then be many additional months until the appellate court issues its decision. Thus, a civil case may be on appeal in North Carolina for a minimum of a year and for as many as several years.