Family Court Dictionary: Summons and Complaint

Lawyers have a bad habit of speaking Legalese. Because we spent (at least) four years in college, three years in law school, and because we hang out with lawyers all the time, we kind of forget that we have our own language and that our clients don’t have a clue what we are talking about (or a judge during a hearing for that matter). So, I thought it might be helpful to go through some common terms to lay out a definition as to what they are and how they impact you during case.

So this is the first installment of the Family Court Dictionary…enjoy!

Summons and Complaint

When you decide you are going to file a divorce, you will need to prepare a series of documents that are filed with the court that officially begin the process. These documents are called a Summons and Complaint. The Summons is a document that is served with the complaint that gives the court jurisdiction over the parties to hear the case. It also informs the defendant of the time limits to respond to the demands in the complaint before any of his rights may be compromised.

The complaint is the document that sets out what you are hoping to get out of the case. There are different rules in different states about the requirements of specificity for the Complaint.  The differences lie in how specific you must be with facts in the Complaint.  Federal Rules of Civil Procedure only require notice of a particular claim.  In a federal case, the requirement is for the Complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(A)(2).  In South Carolina the rules are a little different.  South Carolina is a “fact pleading” state and the South Carolina Rules of Civil Procedure require the Complaint to be “a short and plain statement of the facts showing that the pleader is entitled to relief.” SCRCP 8(A)(2).  The difference in the rules is subtle, but the implication is pretty large.  Federal Rules only require notice of the claim while South Carolina rules require a statement of the facts proving relief.

Maybe an example of the difference would be helpful.

The following sentence would probably be acceptable under the federal rule, but not under the South Carolina rule.

That the parties have been living separate and apart continuously since on or about October 27, 1995 without intervening cohabitation; that the parties separated when plaintiff discovered that defendant was and is conducting an adulterous affair; that plaintiff has not forgiven or condoned defendant for his adulterous activity; and that plaintiff is informed, alleges and believes that she is entitled to a divorce a vinculo matrimonii from defendant on the statutory grounds of adultery.

That gives you a pretty clear idea of the claim for relief which satisfies the Federal Rule, but doesn’t list any specific facts relating to the adultery claim.  Here’s another try that probably complies with the South Carolina rule:

That the parties have been living separate and apart continuously since on or about October 27, 1995 without intervening cohabitation; that the parties separated when plaintiff discovered that defendant was and is conducting an adulterous affair with his secretary, Jane Doe, beginning on or about February 2011 and continuing to present; that the parties had an affair on March 4, 2011 at the Roach Motel on Woodruff Road, and at other times unknown to Plaintiff; that plaintiff has not forgiven or condoned defendant for his adulterous activity; and that plaintiff is informed, alleges and believes that she is entitled to a divorce a vinculo matrimonii from defendant on the statutory grounds of adultery.

 

To wrap up, here is a short definition for you though: A summons and complaint are the documents that:

  1. Are filed with the court and served on the opposing party that officially starts the case,
  2. Provides specific facts about why you are entitled to the specific relief you are asking for, and
  3. Asks for the outcomes that are important to you.

Comments

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