Everyone has seen a hearing on TV, but very few people know the process that leads up to that hearing. 95% of family law cases get settled before they even go to trial. Family law cases can be very stressful, but knowing what’s coming next can help lessen that stress. For a few weeks, we will look at the steps of a family law case prior to a hearing.
Part 2: The Complaint
In Part 1, we discussed negotiation. Today, we will discuss the Compliant, the first official step of a lawsuit. A complaint outlines what your disputes with the other party are and what you want the court to do. A complaint must include statements of fact, a list of your causes of action, and your prayer for relief.
The first part of your complaint contains general information about your case. In a family law case, this includes how you and the other party are connected, any children you have together, and, if you were married, when you married and when you separated. It will also state where you, the other party, and any children live now and have lived for the past six months. This information tells the court if it is the right court to hear your case.
The second part of your complaint is your causes of action. A cause of action is a claim to the court that you have a dispute with another person that the court should decide. North Carolina law outlines which disputes the court can decide for you. There are four major types of family law causes of action: claims about children, claims during separation, a claim for divorce, and claims about marital misconduct.
Any parents living apart have a cause of action for custody and child support. During a separation, either spouse in a married couple can file for equitable distribution, alimony, post separation support, or divorce from bed and board. Equitable distribution is a dispute about how assets from your marriage should be divided. Most people are familiar with alimony, or payments made by one spouse to another after divorce. Post separation support refers to similar payments that are made between separation and divorce. Despite its name, divorce from bed and board is not actually a divorce; it is a claim to the court that your spouse has done something to make living together intolerable, like having an affair, doing drugs, or abusing you.
After you have been separated for a year, you have a cause of action for an absolute divorce, legally ending your marriage. If someone else maliciously interfered with your marriage or your spouse had a sexual affair, you could also have a cause of action for alienation of affection or criminal conversation. What causes of action you have depends on your unique circumstances. Each cause of action that you list should also be accompanied by a short statement of the facts supporting that specific claim.
A prayer for relief is what you want the court to do. Each requested relief must match the causes of action you have listed. For a custody cause of action, for instance, you might ask for visitation or for primary custody. A prayer for relief in an equitable distribution claim asks the judge to divide property in a particular way. In a claim for divorce from bed and board, you may ask the judge to order the other person to leave the home. The relief in an alienation of affection or criminal conversation case is a monetary award.
Before a complaint can be filed, you must also verify your complaint, or swear that it is true, by signing the complaint in front of a notary. Once that is complete, the complaint is filed with the Clerk of Court, officially starting your lawsuit. It is your first official communication with the court and your first chance to make an impression. It is important to talk to a family law attorney to make sure that you are making all of the claims to which you are entitled.