Difference between revisions of "Starting a Lawsuit"
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The first step is to prepare a stack of legal documents that need to be filed with the court. These include: | The first step is to prepare a stack of legal documents that need to be filed with the court. These include: | ||
# A Domestic Civil Action Cover Sheet ([https://www.nccourts.gov/documents/forms/domestic-civil-action-cover-sheet Form AOC-CV-750]) - This tells the court what you're filing. | # A Domestic Civil Action Cover Sheet ([https://www.nccourts.gov/documents/forms/domestic-civil-action-cover-sheet Form AOC-CV-750]) - This tells the court what you're filing. | ||
# A Complaint: This is where you describe your legal claims and the facts supporting each one. | # [[Complaint|A Complaint]]: This is where you describe your legal claims and the facts supporting each one. | ||
# A Verification: This is a signed/notarized document where you promise everything in the Complaint is true. | # [[Verification|A Verification]] (see [https://kinglawnc.com/NCDivorcewiki/images/7/73/Verification_Template.docx template]): This is a signed/notarized document where you promise everything in the Complaint is true. | ||
# A Summons ([https://www.nccourts.gov/documents/forms/civil-summons Form AOC-CV-100]): This serves as a notice to your spouse that they have 30 days to respond. | # [[Summons|A Summons]] ([https://www.nccourts.gov/documents/forms/civil-summons Form AOC-CV-100]): This serves as a notice to your spouse that they have 30 days to respond. | ||
# Servicemembers Civil Relief Act Declaration ([https://www.nccourts.gov/documents/forms/servicemembers-civil-relief-act-declaration Form AOC-G-250]): This is where you promise your spouse is not in the military. | # [[Servicemembers Civil Relief Act]] Declaration ([https://www.nccourts.gov/documents/forms/servicemembers-civil-relief-act-declaration Form AOC-G-250]): This is where you promise your spouse is not in the military. | ||
# Servicemembers Civil Relief Act Report ([https://scra.dmdc.osd.mil/scra/ downloaded here]): This is a report generated from a government website that proves your spouse is not in the military. | # Servicemembers Civil Relief Act Report ([https://scra.dmdc.osd.mil/scra/ downloaded here]): This is a report generated from a government website that proves your spouse is not in the military. | ||
# Affidavit of Judicial Assignment: Each county courthouse has their own affidavit of judicial assignment form they use to assign a judge to your case. | # Affidavit of Judicial Assignment: Each county courthouse has their own affidavit of judicial assignment form they use to assign a judge to your case. | ||
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The next step is service of process. Service of process is intended to put your spouse on notice of the divorce lawsuit and all of the documents filed with the court. However, you can't notify your spouse using common sense methods (e.g. email). It has to be done using one of the methods prescribed by Rule 4.<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_4.html Rule 4(j)]</ref> Those methods include: | The next step is service of process. Service of process is intended to put your spouse on notice of the divorce lawsuit and all of the documents filed with the court. However, you can't notify your spouse using common sense methods (e.g. email). It has to be done using one of the methods prescribed by Rule 4.<ref>[https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1a/gs_1a-1,_rule_4.html Rule 4(j)]</ref> Those methods include: | ||
* Certified Mail: Service of process requirements are met if the paperwork is sent certified mail, return receipt requested, signature required, and an adult at your spouse's home signs for delivery at the home. In that case, you'll need to complete an Affidavit of Service of Process ([https://www.nccourts.gov/documents/forms/affidavit-of-service-of-process-by-registered-mailcertified-maildesignated-delivery-service Form AOC-CV-105]) and attach a receipt of delivery with a signature on it. | * <b>Certified Mail</b>: Service of process requirements are met if the paperwork is sent certified mail, return receipt requested, signature required, and an adult at your spouse's home signs for delivery at the home. In that case, you'll need to complete an Affidavit of Service of Process ([https://www.nccourts.gov/documents/forms/affidavit-of-service-of-process-by-registered-mailcertified-maildesignated-delivery-service Form AOC-CV-105]) and attach a receipt of delivery with a signature on it. | ||
* Sheriff: You can pay a fee for the sheriff to attempt to serve your spouse. They are usually more persistent than USPS certified mail. The fee varies from county to county. In most cases, you can pay at the clerk's office or bring the paperwork directly to the sheriff's office. | * <b>Sheriff</b>: You can pay a fee for the sheriff to attempt to serve your spouse. They are usually more persistent than USPS certified mail. The fee varies from county to county. In most cases, you can pay at the clerk's office or bring the paperwork directly to the sheriff's office. Sheriff is used in more contentious cases. | ||
* Other: There are other methods of service, such as by publication or private process server. These are rare, so we won't cover them here for brevity purposes. | * <b>[[Acceptance of Service]]</b>: Your spouse can sign/notarize an Acceptance of Service that is filed with the court. This option is most often used when lawyers are involved. | ||
* <b>Other</b>: There are other methods of service, such as by publication or private process server. These are rare, so we won't cover them here for brevity purposes. | |||
==Step 3: Discovery== | ==Step 3: Discovery== | ||
Latest revision as of 08:25, 14 October 2022
| How To: Start a Lawsuit | |
| Statutes: | Chapter 1A - Article 3 (Pleadings) Rule 4 (Service of Process). |
| Steps | (1) Prepare a stack of legal documents (2) File the documents with the court and serve them on your spouse (3) Serve discovery |
| Takeaway | A lawsuit involves a large number of legal documents, rules, and processes that vary depending on which county courthouse you're in and your circumstances. |
Starting a lawsuit is done by preparing a stack of legal documents, filing those documents with the court, then serving them on your spouse. The documents required depend on your claims, the courthouse you're in, and other circumstances. Litigation often takes years and involves hundreds of pages of documents. mediation, arbitration, and other alternatives are generally better. However, litigation is the only way to get a judge to make decisions when a spouse is uncooperative, unreasonable, or there is an emergency.
Step 1: Prepare the Documents
The first step is to prepare a stack of legal documents that need to be filed with the court. These include:
- A Domestic Civil Action Cover Sheet (Form AOC-CV-750) - This tells the court what you're filing.
- A Complaint: This is where you describe your legal claims and the facts supporting each one.
- A Verification (see template): This is a signed/notarized document where you promise everything in the Complaint is true.
- A Summons (Form AOC-CV-100): This serves as a notice to your spouse that they have 30 days to respond.
- Servicemembers Civil Relief Act Declaration (Form AOC-G-250): This is where you promise your spouse is not in the military.
- Servicemembers Civil Relief Act Report (downloaded here): This is a report generated from a government website that proves your spouse is not in the military.
- Affidavit of Judicial Assignment: Each county courthouse has their own affidavit of judicial assignment form they use to assign a judge to your case.
- Child Support Cover Sheet (Form AOC-CV-640): Required in child support cases.
- Certification of Identity (Form AOC-CV-645): Required in child support cases.
- Affidavit as to Status of Minor Child (Form AOC-CV-609): Required in custody cases.
- Custody Mediation Documents: Many courthouses have a custody mediation form, custody intake form, notice to attend parenting orientation, or other forms required in custody cases.
- Financial Affidavit: These are used to disclose income and financial records in alimony cases. Each courthouse uses their own form, deadlines, and rules. However, most require the financial affidavit be served either with the initial filings, or very shortly afterwards.
- Notice of Financial Information Required: Each courthouse will have its own rules and forms, but many require you include that court's form that notifies your spouse of the requirement to make financial disclosures
- Other documents: The forms you need to prepare and file may differ depending on the courthouse you're in and/or your circumstances. Each county's divorce court has their own rules and forms unique to that county.
Step 2: File and Serve
Once all of the applicable above documents are prepared, completed, signed, notarized, etc., you'll need to make at least two copies of the original and bring all three stacks to the clerk's office at the courthouse. The clerk will stamp all three stacks. The originals are for the court to keep. One copy is for service of process on your spouse. The third copy is for your records. You'll need to pay court fees of $225, or $235 if you are returning to your maiden name.
The next step is service of process. Service of process is intended to put your spouse on notice of the divorce lawsuit and all of the documents filed with the court. However, you can't notify your spouse using common sense methods (e.g. email). It has to be done using one of the methods prescribed by Rule 4.[1] Those methods include:
- Certified Mail: Service of process requirements are met if the paperwork is sent certified mail, return receipt requested, signature required, and an adult at your spouse's home signs for delivery at the home. In that case, you'll need to complete an Affidavit of Service of Process (Form AOC-CV-105) and attach a receipt of delivery with a signature on it.
- Sheriff: You can pay a fee for the sheriff to attempt to serve your spouse. They are usually more persistent than USPS certified mail. The fee varies from county to county. In most cases, you can pay at the clerk's office or bring the paperwork directly to the sheriff's office. Sheriff is used in more contentious cases.
- Acceptance of Service: Your spouse can sign/notarize an Acceptance of Service that is filed with the court. This option is most often used when lawyers are involved.
- Other: There are other methods of service, such as by publication or private process server. These are rare, so we won't cover them here for brevity purposes.
Step 3: Discovery
Discovery is the process of sharing, requesting, and obtaining evidence needed for trial or other hearings. This how to guide will not cover all of the documents, processes, and rules related to discovery. However, this step is to signify that the court generally expects the spouses to begin discovery process immediately. This includes things like preparing subpoenas, interrogatories, and requests for admission. If you are filing any financial claims, you will likely need to start preparing financial disclosures.
Contact an Attorney
This wiki is provided by North Carolina divorce lawyer David King and his firm King @ Law. You can learn more about King @ Law at www.kinglawnc.com. If you are looking to hire an attorney, have questions, or would like to contribute to this wiki, you can contact attorney King using any of the following methods:
- Schedule a Consultation
- Start a Facebook Chat
- Email: david@kinglawnc.com
- Voicemail: 919 706 5322