How do I Prepare and File a Divorce Complaint
There are three parts of a complaint: the actual complaint; the verification; and the summons. These documents must be legibly produced on plain, white 8.5-inch by 11-inch letter size paper. While typewritten is preferred, it is not required.
Complaint: The caption goes at the top of the first page of the complaint. The caption lists the county and state, the division of court the matter is to be heard, the names of the Plaintiff and Defendant, and has the title “Complaint.” This type of caption goes on all documents filed in the case, with the title changing with the type of document. The clerk of court will issue a docket number for the case when the complaint is filed.
Factual Allegations: The complaint should list factual allegations as consecutively numbered sentences and paragraphs. Early in the allegations, the complaint should state the place of residence for the parties, including county and state. In divorce proceedings, the complaint must allege the date of marriage and separation. Additionally, you must allege that you have remained separated for at least one year and that at least one spouse intends for the separation to be permanent. If you and your spouse have children, you must state the number of children, their names, and dates of birth. If it is expected that names will change after the divorce, a request to resume a maiden name may be included in the complaint.
Prayer for Relief: After factual allegations are asserted, a Prayer for Relief must be included. It should be styled as, “WHERFORE, Plaintiff requests that …” Typically, a divorce complaint seeks several Prayers for Relief. First, you seek an absolute divorce. Then, you seek cost of the action to be taxed to the Plaintiff. The final Prayer for Relief should be “such other and further relief as the Court finds just and proper.”
Signature: Following the Prayer for Relief, you must sign the complaint. You will also need to sign the verification page. If you are representing yourself, you need to write ‘pro se’ under your signature, followed by your address and phone number.
Verification Page: This is the last page of the complaint. It is an oath, and is signed before a notary. It is your affirmation that all factual allegations in the complaint are true to the best of your knowledge. You may then photocopy the complaint and signed verification for service.
How to File a Divorce Complaint
To file your complaint at the courthouse, you will need the original complaint and two copies. Additionally, you will have to pay a fee to file and have one white- and two yellow-colored summons. The summons is a form used in all 100 counties in North Carolina and is available in the clerk’s office at the courthouse. The summons will contain a similar caption to the complaint and is used to notify the Defendant of the proceedings. You will need an address where you believe the Defendant can be located to send the summons.
Service of the Complaint and Summons: The complaint is usually served with the summons or within five days of service of the summons. Service is the legal, formal delivery of the complaint and summons. The Defendant can be served by certified mail or by a sheriff or other law enforcement officer. If an attorney is representing the Defendant, the Defendant may agree to have the attorney served instead. This is known as acceptance of service. To utilize the sheriff for service generally requires a small fee to the sheriff’s office. If certified mail is used, an affidavit is usually returned when the Defendant signs for the letter.
If these routes fail, the Defendant may be served by publication. To serve by publication, notice must be published in a newspaper in the county where the Defendant last lived.
Filing the Affidavit of Service: Once the Defendant is served, the Plaintiff must file the affidavit at the courthouse or by mailing the affidavit to the clerk with a request for it to be filed. Proof of service must be filed in the case file. It is important to ensure the case number is written on the affidavit. Service must be completed within 30 days of the action starting, so it is important to attempt service early. If the original service fails, service should be attempted again with the “Alias and Pluries Summons” box checked on the summons.