Service of Process
Filing a complaint for divorce in North Carolina is a first step of instituting legal proceedings.
An important second step is what divorce lawyers refer to as “service of process” or “service of the complaint.”
As you might imagine, divorce like other legal matters, may involve disputed legal claims and the related process for resolution of those differences.
If you’re involved in an accident or have a legal dispute that cannot be settled through negotiations, a lawsuit may be required.
Legal Separation and Divorce in NC can be a bit different from other legal matters.
First, unlike cases involving claims for personal injury, wrongful death, and other traditional “torts,” filing a lawsuit is required.
A Divorce Decree cannot be entered without a proper filing and confirmation of effective “service of process.”
Even if the married parties agree 100% on issues involving child custody, equitable distribution, alimony, and visitation, filing a complaint is required to get divorced in NC.
That does not mean there must be eventual litigation and acrimony between spouses.
On the other hand, in the event the parties to a marriage cannot settle their dispute or have legal issues that remain unresolved, a Complaint for Divorce (lawsuit) follows many of the traditional paths of litigation.What is Service of Process?
Once a lawsuit is filed, the “complaining party” or “plaintiff,” is required to provide proof that the “defendant” received a copy of the pleadings.
“Service” as lawyers refer to the process, involves an established method or methods of getting a printed paper copy of the Complaint to the defendant.
Put simply, a lawsuit is something that requires formal documentation that the opposing party has received a copy of the complaint and is well aware that lawsuit has been instituted.
The Defendant is thereby given an opportunity to respond in a timely fashion.
In some instances, the Defendant may choose not to respond, potentially waving important legal rights.
"In a civil cause of action, a Defendant may file an Answer and other responsive pleadings that can include counterclaims, crossclaims, and defenses to the Plaintiff’s Complaint."
- Bill Powers, Charlotte Divorce Lawyer
Under the law, proper service does not allow you to serve divorce papers by email or text.
Divorce lawyers in Charlotte may email copies of the pleadings to opposing counsel and/or the responding party.
That does not constitute proper service.How to Serve a Complaint
Serving your spouse with divorce papers may be accomplished in several different ways.
One of the easiest methods to obtain service a process is for your spouse to sign an acceptance of service.
If that is not feasible, there may be other options including delivery of the lawsuit by way of Certified Mail, an appropriate / designated delivery service that may include UPS and FedEx (Federal Express), or service a process by an individual known as a process server.
Some divorce lawyers prefer service of process by way of the Sheriff.
Service of divorce papers by Sheriff may involve delivery of lawsuit at the spouse’s residence or workplace. That can be embarrassing.
"There are very good, tactical reasons not to serve a Divorce Complaint by Sheriff or private process server. It tends to up the ante and, in some instances, that may prove counterproductive."
- Bill Powers, Divorce Lawyers in Charlotte
Our firm prefers to find pathways within the legal system to proceed in a cooperative fashion when possible.
Although entirely legal, service of divorce papers by Sheriff is not always necessary or appropriate given the individual wants and needs of the client.
We rather focus on the issues involving support or equitable distribution. Squabbling over legal process wastes the client’s resources, which is to be avoided.
The costs associated with divorce, including emotional and financial, can be taxing.
Our sincere hope is to address disputes involving separation and divorce in a direct, professional manner.
Experience shows that to be both more effectual and cost effective for the client.What Happens if My Spouse Refuses to Accept Service of the Complaint?
Unfortunately, that does sometimes happen.
In the event your husband or wife refuses to accept documents or sign for the complaint, that very well may necessitate service of process by the Sheriff in Mecklenburg County.
** Service of Process by Sheriff would ordinarily take place in the county where the lawsuit is instituted; but, that is not always the case. If your spouse lives in another county, state, or even country, special rules may apply to effectuate proper service. There are important legal considerations to the methods and preferred manners to serve a lawsuit on a defendant. Seek legal counsel, as each legal issue and case is unique.
Allowing your spouse the chance to avoid the embarrassment of accepting service by some other agreed-to form or method can be helpful in the long run.Does Acceptance of Service Mean You Agree With the Complaint?
Acceptance of service in North Carolina does not necessarily mean the defendant, or the plaintiff responding to counterclaims, agrees with any of the allegations in the complaint.
Domestic Violence Issues
Acceptance of service also does not mean you agree to the prayers for relief in a divorce complaint.
If you are served with a lawsuit, it's extremely important to carefully read the allegations.
Some legal actions in divorce involve allegations of Domestic Violence, Assault, Battery, and Assault on a Female.
In those instances, the Complainant / Plaintiff may seek a Domestic Violence Protective Order or DVPO.
Criminal Defense lawyers in Charlotte, as well as Divorce Lawyers in Mecklenburg County commonly refer to those as “50B” or a “Chapter 50B DVPO.”
It also makes sense to read the Civil Summons and thereafter review both the Complaint and all associated “filings” with your divorce lawyer.
It’s imperative to make sure you do not waive important legal rights.
As such, you ordinarily would not waive your right to object to the allegations in a complaint or to make claims to the contrary simply by accepting service.
It is important to read all the materials carefully, as a proposed Acceptance of Service may be associated with and in addition to other legal documents/filings.
Acceptance of service begins the legal process, thus resulting in certain timing issues and filing requirements under the NC Divorce Laws.
Once completed, Service of Process causes the legal case to move forward. Court deadlines matter and have consequences.
It is an extremely good idea to speak with legal counsel regarding acceptance of service, the method(s) of accepting a lawsuit, and whether or not you should sign any legal document.Should I Call a Divorce Lawyer?
There are a lot of different things to consider prior to even legal separation.
We think it's a good idea to retain legal counsel for a divorce during the planning stages, if possible.
A fair number of clients come to us before separating to gather information and determine their legal rights.
"Our job as divorce lawyers is to provide information and sound legal advice. Sometimes after hearing what we have to say, people decide to try to work through things with their spouse. That’s OK."
- Bill Powers, Mecklenburg Divorce Attorney
If you have been served with a complaint for divorce or what some people may call “divorce papers,” procrastinating can make a bad situation worse.
Failure to file responsive pleadings consistent with the NC divorce laws may result in irreparable damage.
There are important timing deadlines set forth under the divorce laws of North Carolina requiring filing of a response or what divorce lawyers call an Answer to a complaint for divorce.
That period of time to file an Answer is typically 30-days.
It’s important to note there are also LOCAL RULES for family court matters in Mecklenburg County that affect how legal matters proceed in court.
When legally appropriate, an extension for additional time to file responsive pleadings may be allowed under the laws of North Carolina and local rules of court.
If your spouse has filed divorce papers against you, we believe it imperative to obtain legal representation without delay.
Independent legal representation provides the opportunity for each party to consider and protect their individual best interests.
That's true even if the parties wish to proceed in an amiable fashion.
How Soon Do I Go to Court?
"Even if the parties agree 100% to child custody, alimony, and equitable distribution issues, getting that done correctly and consistent with the parties’ respective wishes can be a deceptively complicated process."
- Bill Powers
If there are allegations of domestic violence or one spouse seeks temporary custody of a child or to children, that may require a hearing on those issues.
Sometimes hearings are set within a very short time frame.
For example, a Domestic Violence Protective Order under Chapter 50B sets forth in relevant part:
Upon the issuance of an ex parte order under this subsection, a hearing shall be held within 10 days from the date of issuance of the order. . .
A hearing, even if the results of which are considered temporary in nature, is a type of court proceeding.
Upon taking testimony and receiving evidence, the District Court judge may make Findings of Fact and Conclusions of Law that can affect:
- Temporary custody of the children
- Visitation Rights – Schedule of Visits
- Child Support
- Temporary support or what may be referred to as “PSS” or Post Separation Support
- Freezing Marital Assets
It can take time to meet with a divorce lawyer even to discuss the possibility of legal representation.
Our Charlotte divorce lawyers will conduct a “conflict check” before agreeing to meet with a client, even as part of an initial consultation.
"Prior to doing anything we will want to make sure we’re available for representation, that we have the time to help, and that there isn’t a professional conflict with the potential opposing party."
- Bill Powers, Charlotte Lawyer
One should not assume a lawyer can undertake a complex matter for representation on short notice.
It takes time to prepare for hearings, even on temporary issues.
That often involves reviewing a substantial amount of materials including bank records, texts, emails, and the pleadings of the parties.
Our law firm charges a True General Retainer to secure the availability of the firm for representation. We also charge hourly rates for legal services that are ordinarily billed on a weekly or bi-weekly basis.
Undertaking a divorce as legal counsel merits careful consideration and a full exploration of the underlying history and reasons for the failure of the marriage.
It is not our job to judge you.
Rather, we seek background, historical information to better understand you and your individual needs.
There is no “one size fits all” divorce. What is important to you may differ from the advice given by well-meaning friends and family.
Attorneys want to make sure the client fully understands the process, firm protocols, and realistic expectations are set forth from the outset.
To be clear, the Powers Law Firm PA is litigation law firm. We are courtroom lawyers.
It is because of our experience as lawyers that we see the value of seeking reasonable solutions to hotly disputed legal issues rather than fomenting an already painful process.
"Fighting in court simply to avenge perceived wrongs, hurt feelings, or other improper purpose is a waste of your time and money. We enjoy being in court. I can almost guarantee you will not."
- Bill Powers
We are also strong proponents of Collaborative Divorce and pre-filing mediation if appropriate.