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Law Pro
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Category: Family Law
Satisfied Customers: 23649
Experience:  20 years practicing family law from divorce, custody, support, alimony to equitable distribution
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I live in North Carolina and was served divorce papers by my

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I live in North Carolina and was served divorce papers by my husband. I was granted a thirty day extension of time to file an answer. During this time I met with an attorney who suggested that I might want to file an answer/counterclaim for a divorce based on equitable distribution. However, she suggested that I try to see if we could come to an agreement before the deadline. The amount of distribution is fairly small and the process of going through the courts, filling out affidavits seemed cumbersome. Unfortunately we haven't been able to come to an agreement and my deadline is very close. It turns out that my attorney is out of town and won't be available until after my deadline. Is it possible to file another extension, and if so how can I obtain the forms? Can you direct me to a website that can help me file an answer/counterclaim with the appropriate forms myself?
Submitted: 4 years ago.
Category: Family Law
Expert:  Law Pro replied 4 years ago.

That extension of time can be granted just by calling and asking opposing counsel - usually they grant it automatically.

 

Here is a sample - you would have to modify it with the correct party names, case number, etc.

 

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID F. EVANS, et al., Plaintiffs,

v.

CITY OF DURHAM, N.C., et al., Defendants.

Case No. 1:07CV739

 

AGREED MOTION EXTENDING TIME OF LINWOOD WILSON TO ANSWER COMPLAINT

 

Plaintiffs David F. Evans, Collin Finnerty, and Reade Seligmann, by undersigned counsel, hereby move for an Order extending the time for Defendant Linwood Wilson to answer or otherwise respond to the Complaint to December 11, 2007. In support of this Motion, Plaintiffs state as follows:

 

1. On November 6, 2007, Defendant Wilson contacted counsel for Plaintiffs Evans and Finnerty to state that he has not yet retained counsel to represent him in this litigation and to request an extension of time in which to answer or otherwise respond to the Complaint.

 

2. At present, the deadline for Defendant Wilson to answer or otherwise respond to the Complaint is November 12, 2007; the deadline for Defendant Michael B. Nifong is December 11, 2007; and the deadline for all other Defendants is December 10, 2007. EVANS et al v. DURHAM, NORTH CAROLINA, CITY OF et al Doc. 15 Dockets.Justia.com


Page 2

 

3. Defendant Wilson, pro se, and all Plaintiffs have agreed to the proposed extension to December 11, 2007.

 

4. Because Defendant Wilson is not yet represented by counsel, Plaintiffs represented that they would file this Motion to request the Court's approval of the proposed extension to December 11, 2007, and that they would serve Defendant Wilson with copies of this Motion and any communications with the Court concerning this Motion.

 

WHEREFORE, Plaintiffs request that the Court extend the time for Defendant Linwood Wilson to answer or otherwise respond to the Complaint to December 11, 2007.

 

Dated: November 7, 2007

 

Respectfully submitted, WILLIAMS & CONNOLLY LLP By: ___/s/ Charles Davant IV_____________ Brendan V. Sullivan, Jr.* Robert M. Cary* Christopher N. Manning* Charles Davant IV (N.C. Bar #28489)XXXXX N.W. Washington, D.C. 20005 Tel.(NNN) NNN-NNNN(202)(NNN) NNN-NNNNEmailXXX@XXXXXX.XXX EmailXXX@XXXXXX.XXX Attorneys for Plaintiffs David F. Evans and Collin Finnerty (* admitted pro hac vice)


Page 3
3 -and- RUDOLF WIDENHOUSE & FIALKO By: ___/s/ David S. Rudolf_____________ David S. Rudolf (N.C. Bar #8587) 312 West Franklin Street Chapel Hill, NC 27516 Tel.(NNN) NNN-NNNN(919)(NNN) NNN-NNNNEmailXXX@XXXXXX.XXX BARRY C. SCHECK, ESQ. Barry C. Scheck* Attn: Elizabeth VacaXXXXXNew York, NY 10011 Tel.(NNN) NNN-NNNN(212)(NNN) NNN-NNNNEmailXXX@XXXXXX.XXX (* motion for special appearance to be filed forthwith) EMERY CELLI BRINCKERHOFF & ABADY LLP Richard D. Emery* 75 Rockefeller Plaza, 20th Floor New York, NY 10019 Tel.(NNN) NNN-NNNN(212)(NNN) NNN-NNNNFax.(NNN) NNN-NNNNEmailXXX@XXXXXX.XXX (* motion for special appearance to be filed forthwith) Attorneys for Plaintiff Reade Seligmann


Page 4
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DAVID F. EVANS, et al., Plaintiffs, v. CITY OF DURHAM, N.C., et al., Defendants. Case No. 1:07CV739 CERTIFICATE OF SERVICE I hereby certify that, on November 7 , 2007, I electronically filed the foregoing Agreed Motion Extending Time of Linwood Wilson To Answer Complaint with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: James B. Craven III 340 West Main Street P.O. Box 1366 Durham, N.C. 27702 Counsel for Michael B. Nifong David S. Rudolf RUDOLF WIDENHOUSE & FIALKO 312 West Franklin Street Chapel Hill, NC 27516 Counsel for Plaintiff Reade Seligmann Robert J. King III Kearns Davis BROOKS, PIERCE, McLENDON, HUMPHREY & LEONARD, LLP 2000 Renaissance Plaza Post Office Box 26000 Greensboro, North Carolina 27420 Counsel for Defendant DNA Security, Inc. & XXXXX XXXXX


Page 5
2 I further certify that I caused the foregoing document to be served by first-class mail, postage prepaid, to the following non CM/ECF participants: Barry C. ScheckXXXXXNew York, NY 10011 Richard D. Emery EMERY CELLI BRINCKERHOFF & ABADY LLP 75 Rockefeller Plaza, 20th Floor New York, NY 10019 Counsel for Plaintiff Reade Seligmann Reginald B. Gillespie, Jr. FAISON & GILLESPIE 5517 Durham-Chapel Hill Blvd., Ste. 2000 P.O. Box 51729 Durham, N.C.NNN-NN-NNNNRoger E. Warin STEPTOE & JOHNSON LLPXXXXX N.W. Washington, D.C. 20036 Counsel for Defendant City of Durham, N.C. Robert A. Sar OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2301 Sugar Bush Road Suite 600 Raleigh, NC 27612 Counsel for Defendant DNA Security, Inc. & XXXXX XXXXX Paul R. Dickinson, Jr. LEWIS & ROBERTS PLLCXXXXX, Ste. 102 Charlotte, N.C.NNN-NN-NNNNCounsel for Defendant Brian Meehan Linwood WilsonXXXXXBahama, N.C.NNN-NN-NNNN-and- Linwood Wilson c/o 120 E. Parrish Street, Ste. 210 P.O. Box 2301 Durham, N.C. 27702


Page 6
Moreover, Reginald B. Gillespie, Jr., counsel for Defendant City of Durham, N.C., has agreed to cause the foregoing to be provided to Defendants Mark Gottlieb, Benjamin Himan, David Addison, Steven Chalmers, Beverly Council, Ronald Hodge, Jeff Lamb, Stephen Mihaich, Michael Ripberger, and Lee Russ, employees of the City of Durham whose addresses the City of Durham has requested not be placed in the public court file. Respectfully XXXXX XXXXX Charles Davant IV Charles Davant IV (N.C. Bar No. 28489) WILLIAMS & CONNOLLY LLPXXXXX N.W. Washington, D.C. 20005 Tel.(NNN) NNN-NNNN(202)(NNN) NNN-NNNNEmail:XXX@XXXXXX.XXX Attorney for Plaintiffs David F. Evans and Collin Finnerty



Edited by Law Pro on 12/1/2009 at 2:45 AM EST
Customer: replied 4 years ago.
I already found this sample for extension of time while doing my own research, but I do not feel that it applies to my situation. This is a petition for an absolute divorce and it is very unlikely that the opposing party will agree to such extension since it is in his interest to let the time lapse and for the divorce to be granted with no distribution. Must both parties agree to an additonal extention? If the answer is yes, please direct me to a website that can help me file my own answer/counterclaim for equitable distribution, etc.
Expert:  Law Pro replied 4 years ago.

There is one of two ways this can go:

 

1) That you contact opposing counsel, request the extension of time to file your responsive pleading (answer and counterclaim)

 

or

 

2) That you file a motion requesting the court to grant an extention of time to file your responsive pleading.

 

If the opposing counsel grants the request - then just send them a letter confirming such - you need do nothing more but file your answer within the agreed time.

 

If the opposing counsel doesn't grant your request - then you will have to file a request for an extension of time with the court and have a hearing on the matter for the judge to rule on the matter.

 

 

I'll be honest with you - it would be easier to file your answer with counterclaim than go through all that. Then, when your attorney returns - you can file an Amended Answer and Counterclaim.

Customer: replied 4 years ago.
Yes. I think you're right. I just don't know how to find the forms to file an answer and counterclaim and the forms that need to be filed with them. I'm really frustrated because I know that it's pretty common to ask for equitable distribution. All I can find are forms to initiate a divorce action. I've been on the county website, I've googled, etc. Do you know of any sites that can help me with this? I realize that filing an answer/counterclaim is a bit more complicated than initiating it, but I think I could do a reasonable job if I only had access to the forms.
Expert:  Law Pro replied 4 years ago.
Step 1

Retain a divorce attorney or attempt to navigate the divorce process yourself. According to Wake Family Law Group, you have 30 days to respond to the Petition for Dissolution of Marriage that was served on you.

  • Step 2

    Draft an answer to the divorce petition. The answer must be filed before, or at the same time as, your counterclaim. The answer should admit or deny each of the allegations and respond to any demands included in the petition.

  • Step 3

    Draft the Counterclaim for Dissolution of Marriage. If you agreed to something in the petition, put the same thing in the counterclaim. If you contested something in the petition, enter your request via the counterclaim. For example, if your wife requests primary custody in her petition and you do not agree, you should deny that request in your answer, and then, in your counterclaim, you should ask for primary custody.

  • Step 4

    Review your counterclaim, making sure you address child custody, child support, alimony, equitable distribution and any other issues that may be a part of the divorce case.

  • Step 5

    File your answer to the divorce petition and your counterclaim with the appropriate court (the court in which the petition was filed).

  •  

    Basically here is a sample form:

     

    COMES NOW the Defendant and for his/her Answer and Counterclaim for divorce states as follows: ANSWER 1. Defendant admits paragraphs #__________________________________of Plaintiff's complaint for divorce. 2. Defendant denies paragraphs #__________________________________of Plaintiff's complaint for divorce. 3. In further answer to Plaintiff's complaint Defendant states: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ COUNTERCLAIM FOR DIVORCE

    1. Defendant was lawfully married to the Plaintiff in (town) ________________________, (county) __________________, (state) __________, on ____________ (mo/date/yr.)

     

    2. Plaintiff now resides in (town)_________________, (county)________________, (state)______.

     

    3. Defendant now resides in (town)_________________, (county)________________, (state)______.

     

    4. The court has jurisdiction because: (check all of the statements that apply): A. Defendant resided in Maine in good faith for six months before filing this Complaint; B. Defendant is a resident of Maine and the parties were married in Maine; C. Defendant is a resident of Maine and the parties resided in Maine when the grounds for divorce arose; D. Plaintiff is a resident of Maine.

     

    5. Neither party has filed for divorce or annulment from the other before the filing of Plaintiff's complaint in this case except: A complaint for divorce or annulment was filed before in (court name, town and state of court)______________________________________________________________, Docket No. ______________________. That case: Was dismissed on ____________. Is still pending.

     

    6. The parties have personal property, AND Either or both parties has an interest in real estate, OR Neither party has an interest in real estate.

     

    7. Defendant hereby states that the grounds for divorce in this case is that irreconcilable marital differences exist between the parties

     

    8. Defendant and Plaintiff are the parents of the following child(ren): Name Date of Birth Present Address ____________________________ ________________ ________________________ ____________________________ ________________ ________________________ ____________________________ ________________ ________________________ ____________________________ ________________ ________________________ A. The children have lived in the following places at the following times in the past 5 years: Name and present address of Dates child(ren) lived Town and State where child(ren) Person child(ren) lived with with that person lived with that person _________________________________ ____________________ _____________________________ _________________________________ ____________________ _____________________________ _________________________________ ____________________ _____________________________ _________________________________ ____________________ _____________________________

     

    B. Defendant has not been involved in any way in, and has no information about, another court case in any state concerning the custody of the child(ren) except as follows: Protection from Abuse Protective Custody Other (describe what kind of other case)________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

     

    9. (Check all boxes that apply) No public assistance benefits have ever been received for the child(ren). OR Public assistance benefits have been, are now, or will be received for the child(ren). AND Defendant has sent a copy of this complaint to the Department of Human Services at the following address: Support Enforcement Division, Central Office Supervisor, State House Station 11, Augusta, MENNN-NN-NNNN/em>. (A copy must be sent when the child(ren) have been, are now or will be receiving public assistance benefits.) The Department of Human Services has issued a child support order regarding the child(ren). (If such an order has issued, a copy of the order must be attached to this Complaint). The Department of Human Services has been contacted to set up, review, change or enforce a child support order regarding the child(ren).

     

    WHEREFORE, DEFENDANT REQUESTS that a divorce be granted and that the Court; (Check all boxes that apply) Determine parental rights and responsibilities regarding the minor child(ren), including child support; Set apart the non-marital property to each party and divide marital property; Order the alimony be paid to the Defendant by the Plaintiff; Award reasonable attorney's fees to Defendant's attorney; and Change Defendant's name to ________________________________________________.

     

     

    Now your going to have to modify this using their complaint for divorce and copying the same headings, and case number XXXXX

     

    Where this document used Maine - you use North Carolina.

    Customer: replied 4 years ago.
    Thank you for your answer. I don't have a problem substituting the information (by the way there are no children involved), but it is my understanding that each state has their own forms, and in order for them to be accepted they have to be formatted just right. North Carolina's form doesn't look like this. Also there are other forms that need to accompany the answer/counterclaim. Is there a website that you know of that can direct me to North Carolina forms? Perhaps a package of forms to answer a petition for divorce? Of course I assume they would not be free. I'm sorry to keep dragging this out but I really think I need access to some sample forms from North Carolina or a package I can purchase and change to fit my needs.
    Expert:  Law Pro replied 4 years ago.

    You just have to follow the format from the Complaint/Summons you were served.

     

    Small little format errors aren't really that consequential when the pleading is filed pro se - they hold attorneys to a different and higher standard.

     

    What you want to make sure of is that you make the Counterclaim for equitable distribution and spousal support/alimony.

     

    As to the divorce - you really can't fight the divorce itself - if he wants it he can and will get it so that's really just a waste of time opposing such. However, if you make the spousal support go on as long as possible before a divorce - that will help you in the short term getting support. After the divorce it turns into alimony and if you should get such depending upon your personal situation and facts.

     

    What you have to fight for now is money - your economical survival now and down the road - so you want to make sure you file the Counterclaim for equitable distribution and alimony.

    Law Pro, Lawyer
    Category: Family Law
    Satisfied Customers: 23649
    Experience: 20 years practicing family law from divorce, custody, support, alimony to equitable distribution
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