Filing for divorce in the state of North Carolina can be a cumbersome process because of the complexities that guide the process. However, Civil Procedure is necessary in order to maintain the integrity and order of the judicial process. This article will serve as a basic and generalized overview of divorce procedure in the state of North Carolina. These articles are never a replacement for the knowledge and experience of a family law attorney. This is especially important to note for this article because Civil Procedure can make or break your case.
Civil Procedure can best be defined as a body of laws that set out the rules and practices that courts follow when adjudicating civil lawsuits. Civil litigants use these laws to enforce and protect their legal rights through court orders and monetary awards. Procedure formats the litigation and tells us the “who,” “what,” “when,” “where,” and “how” of the litigation proceeding.
- Who: There are specific laws that grant a particular party standing to sue in the court’s jurisdiction. Civil Procedure tells us who can file the lawsuit and names the distinct requirements affording a party the right to sue in that particular court.
- What: Civil procedure is necessary to identify the minimum requirements for “what” each complaint, answer, reply, and any other motion must include in order to be considered “well-plead.” Official court documents like “complaints” are much more than just a list of grievances because the court is very specific in requiring that certain statements and issues be addressed. The “what” factor of Civil Procedure names those intricate details that are required in a complaint or motion in order to meet the minimum requirements.
- When: The “when” factor forces the party to consider statutes of limitations for the complaint and other motions. It also requires the party to comply with the rules and timelines for issues such as when a response is timely; when a party can file for Summary Judgment; and when a party can dismiss a complaint with or without prejudice. This list is not exhaustive, so parties must be aware of when things are required if they have any hope of winning their case during litigation.
- Where: The “where” factor of procedure tells litigants where the litigation will take place. It answers the question, where is the proper forum? Just like the separation between criminal and civil, not every case can be filed at the state level. The “where” factor asks: Is this a federal issue because there is a federal question, or diversity of litigants? Does this litigation belong in district court? Is it in the appropriate venue? Has there been an appeal causing this litigation to take place at the appellant level? Filing the complaints and subsequent responses with the appropriate court is extremely important.
- How: The “how” factor tells us how the proceedings will be conducted. Intricate details, such as how service of process must take place, differs at the state and federal levels. How a hearing or a trial will be conducted is important for trial preparation. Will there be a jury? How many jurors are required? Will there be a judge? How many days have the parties agreed upon during the scheduling conference? How many days are afforded the parties for mediation? It is important for litigants to know how the proceeding will take place so that they can follow the rules appropriately.
Why Is Civil Procedure Important to My Case?
Movies like Jim Carrey’s Liar Liar make litigation seem like a “free for all” to those who do not understand the process. By the time you see the lawyers in most of these movies, a host of things have occurred before the parties can even think of scheduling for trial. Civil Procedure can make or break your case. Failure to follow the rules appropriately can cause your case to be dismissed, which can be extremely costly to you. Think of it this way … every time you are forced to start a proceeding over from scratch, you have officially wasted time and resources; especially if you are paying for those resources by way of an attorney. Your failure to appreciate the rules could ultimately result in the dismissal of your claim – or worse, the imposition of sanctions. Can you imagine wasting resources and having to pay the court additional fees for failure to adhere to its standards? Can you imagine having to pay your adversary’s attorney fees because you failed to follow the rules? Not only is it important that you understand that there are rules that govern the process, it is also important to understand which rules govern the litigation for your proceeding. Some rules are applicable because the state legislature has a set of statutory laws governing the process. However, within these laws, each district court may have local rules. Local rules may require things such as additional forms or a cover sheet for your complaint. Local courts are like obstinate grandparents who follow the rules, but they have their own way of doing things. For example, in North Carolina litigants who feel that they are entitled to alimony must file a claim petitioning the court prior to the divorce decree.
Step 1: Whose Courtroom Is This Anyway?
You and your spouse have made the difficult decision to divorce. The first step in initiating litigation is determining which court has jurisdiction over your case. In order to do this efficiently, we will be studying the rules concerning venue. Venue in Civil Procedure determines the appropriate county to bring the cause of action. Venue is proper in the county where the residents reside or where the cause of action occurred. As long as there has been no prior litigation regarding the issue of divorce, the divorce proceeding will typically be in a county where at least one of the parties is a resident. It is important to bring the case in the proper county to avoid expensive litigation with your spouse over proper venue. For example, if you spent all of your marital years in Iredell County, your spouse remained in Iredell during the separation period but you moved to Beaufort County, it is probably not in your best interest to file for divorce in Gaston County. The reason being, neither you nor your spouse resides in Gaston County. You may respect or favor the local rules in Gaston County, but you may cost yourself unnecessary time and resources by attempting to file for divorce there. That is not to say that you cannot file for divorce or equitable distribution there. Venue is also proper within the state of North Carolina in any county deemed acceptable by the Plaintiff. So, for example, if neither you nor your spouse remains a resident in the state of North Carolina, you could file for divorce in the county that is closest to you based on the convenience of the parties or witnesses.
Unlike Personal Jurisdiction errors (which we will discuss in depth later in this article), the court is less likely to completely dismiss your complaint for failure to file in the appropriate venue. Under North Carolina law, the court may simply file for a change of venue if the suit has not been brought in the proper county, or if another venue is more appropriate for the convenience of the witnesses that you or your spouse will be using during the dispute. In instances dealing with custody, the court expands venue to include the county where either parent resides to include the county where the child resides. Custody and child support cases differ greatly from divorce proceedings in that the NC court where the initial custody or child support decree is issued has “exclusive and continuing” jurisdiction. This just means that the court where the initial decree is issued will remain the proper venue when future issues relating to the initial complaint arise. In order to litigate the issue in a different court, you must file for a change of venue and prove to the court that the new district is the proper venue. Be careful about venue. If you happen to be the defendant in the litigation and you fail to object to the venue selected by the plaintiff prior to sending your answer, you waive or lose your ability to motion for a change of venue. There are a variety of reasons to change venue, so when in doubt, please consult your attorney! This will save you and your spouse time, money, and resources in the end.
Jurisdiction: The Court that Holds the Power
Since we are discussing venue, we may as well discuss jurisdiction and the impact that it may have on your case. Jurisdiction differs from venue in that jurisdiction tells litigants who can sue and be sued, what sorts of actions may be litigated, and in which courts litigation can take place. Venue simply tells the litigants where to sue once the type of court where litigation can take place has been established. I promise that this will make more sense in a moment. There are two types of jurisdiction: Personal Jurisdiction and Subject Matter Jurisdiction.
Personal Jurisdiction: The Power to Bring People Together
Personal Jurisdiction can be really complex, so we are only going to discuss the most basic details here. Personal Jurisdiction imbues the court with the power over people. Because of Personal Jurisdiction, the court has the authority to drag parties into court for litigation purposes. There are a variety of ways to give the court the power over the parties in your case. One way is to voluntarily submit yourself to the jurisdiction of that particular court. How can you submit yourself? Remember when we discussed waiving the right to object to venue in the Separation Agreement article? If not, here is a little refresher: If you fail to object to venue prior to submitting your answer, you waive your right to object to venue at a later date. This is because, by submitting your answer to the Plaintiff’s complaint, you are voluntarily acknowledging for the court that you believe that this is the appropriate place for litigation to take place. This is a perfect example of voluntarily submitting yourself to the court’s jurisdiction. When you file documents that help propel litigation, you are thereby submitting yourself to that court’s jurisdiction.
The court can also assert its authority over a party, where service of process has been appropriately served as long as the service of process complies with the state’s statutes and constitutional requirements for due process. So, if you continue to reside in North Carolina, and you commence service of process on your spouse in Virginia, as long as you comply with North Carolina statutory requirements for service of process, North Carolina courts will acquire jurisdiction over your spouse. The appropriate methods of service of process will be discussed later in the article, but here is a precursor to what you will learn later: Certified Mail, Service by Sheriff, Service by a Private Process Server, or Service by Publication. These methods are not exhaustive, just the most common forms.
Subject Matter Jurisdiction: The Power to Hear and Impact
Subject Matter Jurisdiction imbues the court with the power to hear the details of a case and to make rulings that impact the litigants. The court must determine whether your case is the type of case within its power. Remember when we told you that divorce proceedings are limited to District Court? This is a perfect example of Subject Matter Jurisdiction. According to statutory guidelines within the State of North Carolina, the District Court has been empowered to hear domestic cases. Domestic cases include child custody, child support, equitable distribution, cases for alimony … the list goes on. In a nutshell, the District Court has the power to hear the details of your domestic case. All the facts and evidence are subjected to the District Court’s authority. Because these facts and evidence are submissive to the District Court’s authority, when the court makes a determination, the parties who have submitted to this court’s authority must adhere to the court’s order.
Step 2: Pleading to Whom and Serving What?
After determining the appropriate forum for litigation, if you are still certain that you wish to initiate a lawsuit, you must first file a complaint. A complaint is a formal legal document that provides all the facts proving that you are entitled to relief from the Defendant. Complaints assert certain facts, which are known as claims or “causes of action” to the court. Don’t worry if you only have one claim. All the court requires is that the Respondent have one cause of action entitling them to relief to file a complaint. You could choose to file for custody and child support, or simply file for child support as its own claim. Just know that when you file a claim, you open yourself up for counter-claims by the other party, all of which will be addressed in court.
It’s a Party! The court has very specific titles for those who participate in a legal proceeding. If you are the party who is initiating the proceeding by filing the complaint, you will be the Plaintiff. Some courts use the term “Complainant” as well. Plaintiffs can be people, the State, or State Agencies. For example, in Termination of Parental Rights proceedings, the Plaintiff could be a family member who is filing a complaint so that they can adopt the child, or the Department of Social Services could serve as the Plaintiff, acting on behalf of the state as a means to provide the child more permanent housing. In both of these scenarios, the party that is initiating the proceeding will serve as the Plaintiff. If you are on the receiving end of the grievances or “causes of actions,” then you will be the Defendant. As the Defendant, you must react to the claims presented by the Plaintiff by either denying, confirming, or neither confirming nor denying the assertions. The legal term for this response is called an “Answer.” You are given 30 days to provide an Answer, so don’t panic if you need to do a little research in order to provide a definitive response. The court only asks that you answer the questions truthfully, as honesty is of utmost importance. You must remember that whatever you say goes into the court’s record, so be careful! If you need additional time, you can file for an extension. Just make sure that you file within that 30-day time frame. Another interesting part of being the Defendant is that you can file your own complaint against the Plaintiff. This suit is called a counterclaim. Just remember that if you file a counterclaim against the Plaintiff, they receive 30 days to reply to your counterclaim, so if you are looking for a quick resolution, countersuing may not be the best recourse. Discuss everything with your attorney. They are the expert, and can guide you to the best option for your case.
What if I Want to File My Own Divorce Complaint? We told you that Civil Procedure could make or break your case, right? Well, here are some important tools to remember when constructing your own divorce complaint. The State of North Carolina requires that your complaint include three specific parts in order to be considered “well plead”: the complaint itself, the verification, and the summons. The documents filed with the clerk of court must be legible and produced on plain, white 8.5-inch-by-11-inch letter-size paper. If you have the resources to type this information, do it! However, if you do not, the court will also accept legibly hand-written documents.
Are we Still Complaining? In order for your complaint to be deemed acceptable by the court, you must include the Caption. The Caption must include the names of the parties, the county and the state where the litigation will take place, the particular division of the court (all Family Law proceedings will take place in District Court), the words Plaintiff and Defendant, and the type of document it is (“Complaint”). Your complaint will also include a docket number, but don’t worry; the clerk will provide this number when you file the complaint. Once you are afforded this number, be sure to put it on any other document that you file. It is a best practice to always copy the docket number, the names of the Plaintiffs, and the names of the Defendants exactly as they appear on the original complaint.
Your factual allegations will directly follow the Caption. This is the section where you assert for the court that you, as the Plaintiff, are entitled to some form of relief. In the context of a divorce, this section would require you as the Plaintiff to assert that you meet the guidelines under North Carolina law to be granted a divorce. The next section of your complaint requires that you show the judge that you belong in their courtroom. The legal terminology is residency, and residency affords the court Subject Jurisdiction over the absolute divorce proceedings. In order to prove residency, the State of North Carolina requires that an individual be a resident of this state for at least six months prior to filing the complaint. In order to prove residency, you will need to state the place of residence for yourself and for your spouse. You may do so by simply including county and the state, or you are welcome to cite your entire physical address. If one of you lives in another state, it is adequate to just recite the name of that state minus the county. For example: “Defendant is a resident of the State of Texas.”
Dates Matter: North Carolina is very specific in requiring that the parties be separated for a period of one year prior to filing for divorce. Because of this requirement, another required allegation for your complaint is that you assert the date of marriage. If you cannot remember the specific date, providing an estimate is sufficient. For example, the courts will recognize the language “on or about May 15, 1984″ or “in May 1984.” Either one will suffice.
If you cannot remember the specific date, including information about where you were married may also be helpful in assisting the court. The court affords the parties substantial amounts of leeway with alleging the date of marriage. However, the court is a stickler with the allegation of the date of separation. You must assert that the date of separation was at least one year from the date that you are filing the complaint. You are also required by state law to allege that you have remained separated and that at least one of you intended the separation to be permanent at the time of separation. A good example of this language would be: “Since May 15, 1984 [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. At the time of the separation, Plaintiff or Defendant intended that the separation be permanent.”
Children: If children were born as a result of the marriage, you must assert the names of the children, their ages, birthdates, and the number of children produced. If there were no children born during this marriage, simply state “There are no children born of this marriage.”
Name Change: If you wish to resume your maiden name, you must assert that desire in your complaint (or counter complaint if you are the Defendant). There is an additional court fee assessed with the name change, but it is worth it to do it during the divorce rather than hiring an attorney to assist with a name change after.
Praying for Relief after Complaining: The next part of the complaint, after these required allegations, is called a Prayer for Relief. Begin each 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.
Even if you ask for nothing else, make sure that you ask that the Plaintiff be granted an absolute divorce from the Defendant, and that the marriage existing between the parties be dissolved. You can ask for other forms of relief, like asking that the costs of the action be taxed to the Plaintiff. This is a standard request in divorce actions, and should be included since you are filing the complaint. You can also ask to take another name, if that is your desire, but you always pray for “such other and further relief as the Court finds just and proper.”
- Your Signature: After the Prayer for Relief, create a line for your signature. Please make sure that when you sign the complaint and the verification page, you sign your name identically as it is listed throughout the complaint. You can use your full name, or your name with initials; whatever name you generally go by is fine. Just be sure there is consistency throughout the complaint. If you choose to file for divorce without the assistance of counsel, you are required to write the phrase pro se (signaling that you are representing yourself), followed by your complete mailing address and telephone number (if you choose to disclose it) under your signature line.
- The Verification Page: The verification page will be the final page of the complaint. The verification page is comprised of your oath that the factual allegations of your complaint are true to the best of your knowledge; and the signature of the notary acknowledging for the court that you are indeed the person signing the original complaint. The notary is only required to sign the original complaint, so you are welcomed to Xerox all additional copies. Please note that the verification page is a requirement for divorce. If your complaint is not verified, the judge will not grant you a divorce.
Step 3: Service and Process
In order to begin the divorce proceeding, you will need to take the original complaint, which includes the complaint itself, the signature page, and verification page, to the court along with the $150 processing fee. You will also need to attach a summons to the front of your complaint. One of the summonses will be white and the other two summonses, which will be for the Xerox copies, will be yellow. A summons will always contain a caption similar to the caption that appears on the complaint itself. It will include the state and county of residence, the level of court (district or superior), file number, and 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 30-day period for answering has begun.
Plan to use an address for the 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.
Methods for Service of Process: The state of North Carolina has four acceptable methods for serving the complaint and summons on an individual. The options are: Certified Mail, Service by Sheriff, Service by a Private Process Server, or Service by Publication.
Service by Certified Mail allows the Defendant to be served personally or to their attorney. If an attorney represents the defendant, they must consent to service on his/her attorney through a process that is known as an acceptance of service. This process will allow the attorney to accept service on the Defendant’s behalf. Once the Defendant has received the documents, the post office will send a green card back to you with the signature of the recipient. It is then your responsibility to confirm that the check has been signed, and to create an “Affidavit of Service by Certified Mail” to place in the court file. Make sure that you attach the green card to your notarized affidavit and file it with the clerk’s office.
Service by Sheriff simplifies the process for the party providing notice. Instead of the Plaintiff filing the Affidavit of Service, once the Sheriff has served the necessary parties, they traditionally will mail you a copy of the Affidavit of Service. However, in some counties, the Sheriff could file these papers instead of sending them back to you, so make sure you call and confirm whether the opposing party has received service of process.
Service by Publication provides notice to the opposing party in the newspaper in the county where there is evidence that the defendant last resided. This alternative method for service is technically more complicated than the other methods, so it may be difficult to effectuate without the assistance of an attorney. Service by Publication also increases the standard waiting period for the Defendant’s response to the complaint from 30 to 40 days.
Filing the Affidavit of Service: You can file the Affidavit of Service in person or by mail. If you file the Affidavit in person, you will simply go to the courthouse and file it with the clerk’s office. However, if you wish to avoid the courthouse at all costs, you can also mail the Affidavit to the court, and request that it be placed with all of the other documents from your legal proceeding. In order to ensure that this information is filed appropriately, make sure that the case number appears at the top right corner of the Affidavit, and also ensure that the names of the parties are identical to the names that have been placed on the original complaint. Unfortunately, there are times where files and important documents are misplaced. Make sure that you follow up with the clerk’s office to ensure that the documents have been filed appropriately. In the event that the Affidavit gets lost or misfiled at the courthouse, it is always a best practice that you keep a copy and you bring this copy with you to your divorce hearing.
Please note that under North Carolina law, the judge cannot grant your divorce if there is no valid proof of service of process. Service within the county allows the court to acquire personal jurisdiction over the proceedings, so it is imperative that you bring evidence of service of process to your divorce hearing. Help the courts run smoothly. Always bring a copy of any documents that should be included in the case file.
In order to expedite the proceedings, you may want to start trying to serve the summons and complaint on the Defendant as soon as you file your action. If there has been no evidence that service of process has been successful within a 30-day period, you will need to go to the clerk of court to reissue the summons. Some examples of failing service of process include certified mail being returned to you as inappropriate address, or the sheriff returning the summons unserved because the party could not be located. If there has been no evidence that service of process has been successful, you will need to complete an additional summons and attempt service of process again. This time, you will need to check off the box marked “Alias and Pluries Summons.”
Step 4: Discovery
Discovery is the process by which information is exchanged within the context of litigation. Typically during discovery, both sides will turn over information to their adversary. If you determine that there is additional information needed, you may request that information from the opposing side. By law, you are entitled to discover any matter that is relevant to the subject matter of the pending action as long as it is not considered privileged information. This means that if you request information from the other side, they are required to produce the information, unless they have an accepted justification for not producing the information. One of the justifiable reasons for denying discovery is if the information is considered privileged. Privileged information includes the “work product” that has been obtained through an attorney’s preparation for litigation. Work product may include the attorney’s notes that have been taken during conversations with the client or other witnesses. It could also include any materials that have been gathered by the attorney, the party, or individuals who are collaborating with the attorney’s efforts. Privileged information also includes information that is protected by attorney-client privilege. So, written statements by the opposing party, meetings with their attorneys, and phone conversations and/or emails are more than likely off limits.
Courts to the Rescue: You are probably wondering why parties even have discovery if everything is off limits. However, the courts can play a powerful role in producing discovery that may otherwise be excluded. If the opposing party refuses to comply with the discovery request, or if they determine materials “undiscoverable,” the court can require discovery. This includes work product materials. If you can show that gaining access to the materials that you requested could not be obtained without “undue hardship,” the court in its discretion can compel the other side to produce materials that would otherwise be deemed undiscoverable. Although the courts have the power to compel discovery, please be mindful that discovery can be an expensive and lengthy process. The opposing side has a powerful tool in opposing and litigating discovery requests that can prolong the process and cost you valuable time and resources.
Discovering the Facts: There are a variety of ways to discover materials needed for litigation. You can acquire information by Deposition; Written Interrogatories; Production of documents; Requests for permission to enter upon land or other property; Requests for physical and mental examinations; and Requests for admission.
- Depositions: Depositions are out-of-court testimonies or sworn affidavits used to gather information. Depositions can be conducted by requiring the deponent to answer written questions in a written format, or verbally by requiring the deponent to verbally answer questions asked by the opposing party. If the deponent is asked to give verbal statements, the deposition will require a court stenographer to be present, and the statement will be made under oath. If the statements are made in a written form, the deponent will typically be required to sign an affidavit which solemnly swears that the information provided is truthful and accurate. Whether the testimony is written or taken orally, you should take depositions very seriously. Anything that is deposed is fair game for trial. Your answers or the answers of any witnesses that you call to be deposed may be used against them in court for impeachment purposes (if there is evidence that they have been untruthful), in case of death or illnesses preventing the individual from appearing in court, or in cases of the witness being unavailable for trial (out of the country, incarceration, refusing to testify).
- Written Interrogatories: Unlike depositions, interrogatories can only be used against parties to the litigation. Interrogatories are a list of questions to which the opposing party responds. North Carolina has limited the number of questions to 50 unless expanded by the court. Similar to depositions, interrogatories are made under oath and can be used against you in a trial setting. Always make sure to answer the questions truthfully and honestly.
- Requests for Admissions: Requests for admissions are a set of statements sent from one litigant to the opposing party, for the purpose of having them specifically admit or deny the allegations therein. These are important because they force the opposing party to specifically assert or deny specific facts. Attorneys often use them to to narrow issues for litigation. Requests for admission may be answered by:  Admitting the factual allegation;  Denying the information; or  Objecting to the allegation as a whole. But you must respond to these requests! If the opposing side fails to respond to the requests within the time specified by your state’s statute, the assertions are deemed admitted. Having an admitted assertion could make or break your case because a judge could consider the facts so admitted to have been conclusively proven and use them to impact his or her ruling.
- Requests for Production of Documents and Things: Similar to interrogatories, these requests can only be directed at the opposing party. Requests for production of documents typically ask that certain items be produced rather than questions being answered. For example, instead of an attorney asking for the balance of your bank account with an interrogatory, they will ask that you produce a copy of your bank statement confirming the balance of your bank account. Because the content of these requests often coincide with the information needed in interrogatories, attorneys often send the requests together.
Step 5: A Hearing vs. a Trial
So, you have chosen the appropriate District Courtroom; you made it through the pleadings; you served the opposing party the documents necessary to give them notice of legal actions being taken against them; and you have discovered enough information to make your case. It is now time to go to trial … or is it? Individuals often confuse the terminologies for hearing and for trial. This is mostly due to the fact that the words can be interchangeable at times. Typically, during a hearing, lawyers are simply arguing factual information before a judge without using evidence. These are called “non-evidentiary” hearings. However, there are instances where evidence is submitted before a judge during a hearing. During trial, facts and evidence must be produced to prove your point. Why is this important? This is important because during domestic actions, you could have several hearings and never actually go to trial. In order to argue efficiently, it is important that you distinguish whether you are attending a hearing or a full-blown trial. We will try to make it simple. While evidence can be presented at a hearing, a hearing only becomes a trial if there is evidence being presented. Trial is a technical term for a particular type of hearing. More specifically, a trial is a hearing where facts and evidence are presented before a judge or jury for the purpose of having a ruling that will impact both parties. When a judge hears arguments, but no evidence is presented, that is not a trial, it is a hearing.
Judge Shopping: Unlike criminal court, domestic cases do not allow the parties the opportunity to decide whether to conduct a trial before a judge or jury. All domestic disputes are heard before a judge. In some counties, the court calendar will determine which judge hears your case. In those counties, the attorneys typically schedule cases according to which judge is assigned to which courtroom for the date of their trial or hearing. This is completely acceptable, and it leaves space and opportunity for your hearings to be heard in front of different judges throughout the process. However, there are those counties, like Mecklenburg, where once a judge has heard one issue from the domestic dispute, all subsequent hearings will be scheduled in corroboration with that particular judge’s calendar.
Trial Process: During trial, both parties present evidence that most favors their side. This could include witness testimony under oath, exhibits, and sometimes audio or video recordings.
Witness Testimony: During witness testimony, the Plaintiff is allowed to present their evidence first. The witnesses are compelled to tell their story through direct examination by the attorney. During direct examination, the attorney traditionally asks open-ended questions that allow the witness to tell their story, instead of the attorney leading the witness to testify in a way that supports their position. After the direct examination, the opposing side is granted the ability to cross-examine the witness as a means to discredit their story. North Carolina is one of the few states that allow the opposing side to ask about anything relevant to the case during cross-examination. Even if the issue was not addressed during direct examination of the witness, North Carolina allows the opposing side to make their case during cross-examination. Re-direct examination, however, is limited to the scope of questions asked on cross-examination. It is important to note, however, that the issues addressed must be relevant to the case itself. Upon the culmination of the display of the Plaintiff’s evidence, the Defendant is then allowed to use the same process to present their evidence. During the witness testimony, the parties will offer into evidence documents, photographs and other non-oral evidence that they feel will persuade the court to render a judgment in their favor.
Preponderance of the Evidence: Upon the culmination of both parties’ submission of evidence, the judge will make a ruling. It is important to note that since both parties have availed themselves to the court’s jurisdiction, they are bound by the judge’s decision. Not all judicial decisions are immediately provided. Some decisions could take the judge days or even weeks because he or she will spend that time reviewing the evidence and making the best decision based upon the law. However, when the judge is ready to issue his or her ruling, the decision will be entered into the court records as an order. A party that fails to adhere to the judge’s order can be held in contempt of court and subjected to sanctions, or worse, jail time.
Step 6: Appeal
An appeal is defined as a process where the case is reviewed by a higher court to determine whether the law has been adequately applied to your case. An appeal can be taken from any final judgment that has been issued by the lower trial courts. While all parties to litigation are entitled to an appeal in hopes of setting aside a judicial order or decree, the appeals court is not a court of “fact finding.” That means that the North Carolina Court of Appeals will not look over the facts of your case to determine if the judge’s ruling was fair. The appellate court will only look to determine whether the trial judge committed legal errors. For example, if your spouse is awarded $5,000 in alimony during your divorce proceeding, the Appeals Court will not address whether they feel that this number is equitable. They will, however, look to see if there has been a misapplication of law by the judge that caused him or her to grant that award. People really should not try to handle their own appeals. Since the only issues that can be raised on appeal are legal issues, it is best that an attorney who has the legal knowledge conduct these before the court because appeals are time-sensitive and technical.