North Carolina Divorce Lawyers Blog
Don’t Miss That Deadline!!
Whether you are the Plaintiff filing a lawsuit or the Defendant being served with one, one of the most important things for a family law attorney in Greensboro and across the state to keep in mind are deadlines imposed by rules and statutes in North Carolina. Rule 6 of the North Carolina Rules of Civil Procedure sets the guidelines as to how we compute time in North Carolina.
In computing any period of time in a lawsuit, the day of the act that begins the running of the time period is not included. For example, when you are served a summons and complaint for divorce, you have thirty days to respond. If you are served on May 1st, the thirty days would not start until May 2nd, the day following the act that started the running of the time period.
The last day of a time period is typically included. However, if it is a Saturday, Sunday, or a legal holiday when the Courthouse is closed, it is not. So if your period of time to respond to a complaint is set to expire on July 4th, you don’t have to leave your cookout to file your answer. The period to answer would be extended until July 5th, or the next business day when the Courthouse is open.
If you need more time to respond to a pleading or other paper that you have been served, you can request that the Court grant an extension to your deadline. This is typically accomplished by filing a Motion for Extension of Time with the Clerk of Court, and it can be done at any time before the deadline expires. This allows the deadline to be extended for thirty additional days. These extensions are typically granted freely as long as they are timely filed with the Clerk of Court.
Once a deadline has passed, however, a motion for extension of time can only be made to the judge, and must be submitted in writing. This motion typically asks the judge to consider an act or pleading that was not timely. Notice must be given to the opposing counsel or party of such a motion, as they are not allowed to be heard ex parte.
A deadline can also be extended by agreement of the parties. Parties can enter into binding stipulations without approval of the court enlarging the time for response for up to thirty days. These stipulations should be in writing, and best practice is that they be signed by both parties and filed with the court.
Rule 6 also sets time periods for when service of certain papers must be made. For example, a written motion and notice of hearing must be served at least five days before the time that the party is asking that the motion be heard. This rule does not apply, however, to motions that can be heard ex parte. While this notice is required under the rule, it can be waived. If an opposing party was not given the appropriate five days notice but, nonetheless, appears and participates in the hearing, the notice requirement will be deemed to have been waived.
Similar to rules we have previously discussed, Rule 6 also provides that, when notice or papers are served on a party by mail, three additional days are added to the time period in which you must respond. The three additional days are added to account for the time that the notice will be in transit before it actually reaches the opposing party.
While Rule 6 provides a fairly comprehensive framework for the computation of time, it will be superseded by other rules that provide more specific deadlines in certain situations.
by Leesa M. Poag, Attorney, Woodruff Family Law Group