Legal Terminology
Affidavit
Written testimony under oath - usually sworn to in front
of a notary. A common misunderstanding by parties is that an affidavit by another
person can be used instead of their in court testimony as to a contested issue of
fact.
Alternative Dispute Resolution
Ways for parties to a divorce case to resolve their
disagreements without a trial. The most common form of alternative dispute resolution
is mediation or arbitration - especially mediation in custody cases.
Answer
See Response.
Appeal
A procedure to ask a higher court (the appellate court)
to review the ruling of a lower court (the trial court). In divorce cases, generally
only final Judgments can be appealed.
Appearance
Coming into court as a party to a case or voluntarily
submitting to the power of a court. Usually this is not a physical act, but a lawyer
filing a document.
Attorney (at Law)
An advocate or counsel employed to prepare, manage and
try cases in court. The term lawyer and attorney are synonymous.
Attorney for the Child
An attorney appointed to represent a child. This role
differs substantially from that of a guardian ad litem.
Child Support
Money paid by one parent to the other for the support
of their children. Child support is generally not taxable to the recipient.
Collaborative Law
Ideally, collaborative law in family law practices allows
the attorneys for both of the parties to assist the parties to resolve conflict
using cooperative strategies rather than adversarial techniques and litigation.
Proponents of collaborative law, as a model, believe that it can create a different
paradigm in which the lawyers have a financial interest in resolving disputes without
litigation rather than earning fees in part based upon the degree to which a case
is litigated. In collaborative law cases, the parties and the lawyers sign an agreement
which provides that if there is to be a contested motion or issue, both parties'
attorneys must withdraw from the representation. Unfortunately, there are few lawyers
who specialize in collaborative law and most good lawyers will strive to settle
cases without litigation.
Common Law Marriage
A marriage without license or ceremony recognized by
the law in the state it was created.
Consulting Expert (Consultant)
A consultant is an individual who "has been retained
or specially employed in anticipation of litigation or preparation for trial but
who is not to be called at trial." Normally the identity, opinions, and work product
of a consultant are discoverable only upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery to obtain facts
or opinions on the same subject matter by other means.
Attorney Fee Award (Petition for Attorney Fees)
A judgment requiring one party to pay the other party's
attorney's fees which is entered after the conclusion of the case. An award by the
court does not mean the other person will pay without collection efforts. To over-simplify
matters, an award of temporary fees or suit money is sought while the case is pending
and the attorney fee award is sought at the conclusion of a case.
Contempt of Court
Failure to comply with a court order by a person who
is able to comply. It also includes conduct in court which obstructs a court in
the administration of justice. In civil contempt, an individual is said to have
the keys to his own cell. This means that the goal in civil contempt is to coerce
an individual to comply with a court order (and he or she must have the means to
do so.) In criminal contempt, the goal is to punish an individual for his or her
past-misconduct and a private party cannot bring a criminal contempt, only the D.A.
can do that.
Counter-Claim
A pleading filed by the Respondent also asking for a
divorce (dissolution of marriage) or other relief filed in response to a Petition.
A reason for filing a counter-petition is that the person who brings the divorce
case has the right to voluntarily dismiss the proceedings at virtually any time
prior to trial. However, a party cannot cause the entire case to be dismissed if
the other side has filed a counter-claim on any issue.
Cross-Examination
Asking questions of a witness who was put on the stand
by the other lawyer. Cross-examination is usually intended to discredit the witness
or weaken the effect of the testimony.
Custody
Usually refers to the parent's right to (1) have a child
live with that parent and (2) make decisions concerning the child.
Custody Evaluation
Before litigating custody issues, there is often a court
ordered custody evaluation.
Default
Failure to do something or to do it on time. Typically,
if the other person fails to file a response to your pleading within the time required
by law, a default order can be entered granting you the relief you seek and barring
them from filing new or late pleadings or claims.
Defined Benefit Plan
A type of qualified annuity: It is often called a pension
plan and the employee will receive an annuity at retirement, that is, as a general
rule he will receive monthly payments for the duration of his life although there
may be several other payment options. Such payment options may include a 10 year
certain option. Generally, there are no account balances for defined benefit plans.
There may be, however, a lump-sum often with a number of defined benefit plans.
Defined Contribution Plan
A WYSWYG (What You See is What You Get) type plan. In
a defined contribution plan there is an individual account for each employee. The
value of the retirement benefit is the account balance.
Deposition
Testimony under oath taken before a court reporter but
not in court. Generally, this is a discovery method. However, in certain cases the
law allows the use of what is called an "evidence deposition." Generally, depositions
in can be no more than three hours in length.
Direct Examination
Asking questions of a witness by the lawyer who called
the witness.
Discovery
Procedures used to learn facts necessary to settle a
case or prepare it for trial. The usual discovery vehicles are: 1) notices to produce
(directed to a party); 2) subpoenas for deposition or production of records (directed
to a non-party); 3) party depositions; and 4) interrogatories (usually directed
to a party). See: Interrogatories; Request for Production; Deposition, Subpoena.
Dissipation
The use of marital property or funds for the benefit
of one spouse for a purpose unrelated to the marriage at a time that the marriage
is undergoing an irreconcilable breakdown. If there is a claim of dissipation, generally
the spouse who is charged with dissipation has to show how he or she spent such
funds, that is, demonstrate that the funds were spent for a marital purpose. A key
limitation is that dissipation can only be reimbursed to the marital estate if it
is at a time frame when the marriage is undergoing an irreconcilable breakdown.
This time frame is not necessarily the time when one party files for a divorce.
Dissolution of Marriage
Divorce. The legal process of ending a marriage. Most
states no longer use the word divorce. However, lawyers and clients still use the
term divorce because it is simpler than the longer term "dissolution of marriage."
Domestic Violence
Conduct against another member of a family which can
include beatings, threats, stalking or other forms of intimidation, harassment,
neglect, and physical, emotional, and sexual abuse. May include any act by one member
of a family that causes one of its members physical or emotional harm.
Eavesdropping
The Federal discussion is based upon the wiretapping
provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. Sections 2510-22. The Federal law prohibits "any person" from
making recordings of private conversations in which no party consents and authorizes
any person whose conversations are recorded to recover damages. Case law including
Simpson v. Simpson, 490 F. 2d 803 (5th Cir. 1974) had held that the statute did
not apply if the "any persons" were spouses of each other, the conversations
that are covertly recorded occur over the telephone in the marital residence and
the recording was accomplished without the assistance of an outside party. However,
a majority of the cases which have addressed this issue have disagreed with Simpson.
For a recent case discussing Federal law see, Glazner v. Glazner, (December 31,
2002), No. 02-11799 (11th Cir. Court of Appeals).
Equitable Distribution (Division)
A system of dividing property owned by parties to a
divorce. Equitable may be equal but sometimes the assets are weighed in favor of
the party who has given up career opportunities for the sake of the marriage, who
has raised the children, or who has a lesser career potential as compared to her
(or his) spouse.
Evidence
Proof presented at a hearing, including testimony, documents
or objects.
Exclusive Possession of the Marital Residence
Some laws provide that a party can seek exclusive possession
of the marital residence while the divorce is pending.
Exhibits
Tangible things presented at trial as evidence.
Ex-Parte
Any application to a court for relief made when only
one side is present and in certain instances without formal notice.
Fees
A lawyer's charges paid by a client for legal services
rendered to the client. Although many different fee arrangements are possible, the
following represent the most common types of fees:
1. Hourly fee: A fee based on the time expended and an hourly rate.
2. Retainer: Money paid by the client to the lawyer to obtain a commitment from
the lawyer to handle the client's case. In divorce cases, a retainer is generally
a deposit against which the lawyer charges fees as they are earned.
3. Engagement fee: This is a fee that is sometimes charged by a lawyer for the agreement
to take your case and to commit to being available for your case. Normally, an engagement
fee is in addition to charges on an hourly rate basis.
4. Contingency Fee: A percentage of the recovery. Contingent fees are forbidden
in divorce cases but, in some states a lawyer is permitted to enter into a contingent
fee to enforce a judgment, that is, for collection purposes.
5. Bonus Fee: A fee based upon factors in addition to the hourly fee. Also called
a premium or final fee.
6. Flat Fee: A fee in a fixed amount for handling an entire case or a certain part
of it. In divorce cases, there can be flat-fees for a pre-agreed divorce, that is,
simple non-contested divorce. Otherwise, flat fees are rare.
File
Generally the act of filing a petition, motion, etc.,
with the clerk of the court. Term also used as the act of starting a case.
Garnish
To take money from wages or from an account to satisfy
an unpaid court order for the payment of money.
Goodwill
The courts sometimes divide the goodwill of a business
into two types: enterprise goodwill and personal goodwill. . Personal goodwill is
the portion of goodwill which is based upon the personal efforts of the spouse who
owns the business. Enterprise goodwill can be valued. It is the value of business
itself, assuming that you could replace the business owner with another person and
pay him or her a reasonable salary.
Grounds
The conduct or circumstances which must be proved to
entitle a person to a divorce.
Guardian-ad-Litem
A person appointed by a judge to prosecute or defend
a case for a person legally unable to do so, such as a minor child.
Hearing
Any proceeding before a judicial officer.
Hearsay
The standard definition lawyers use for hearsay is an
out of court statement asked to be introduced into evidence for the truth of the
thing that is asserted. A non-legal definition of hearsay is testimony based upon
rumor - what someone else says who is not in court - when you are asking the court
to consider the rumor testimony based upon its truth. The most common exception
to the hearsay rule is an admission of a party opponent. Generally, what the other
party says is admissible as an exception to the hearsay rule. The second most common
exception to the hearsay rule is the business record exception but even this exception
requires certain background (foundation). Not all business records are admissible.
Only those records where you can show that they were made in the regular course
of the business and where the person who is testifying at least has knowledge of
the record keeping system.
Income Withholding Notice / Order
An income withholding notice differs from an income
withholding order in that a notice provides for withholding of income to secure
payment of child support/maintenance or certain other expenses such as payment of
health care premiums. An order for income withholding is entered by the court.
In Chambers (In Camera) Interview with the Child
If there is testimony by a minor child, custody law
provides that a judge may take the testimony not in open court but in the judges
office (chambers). Counsel is present at the interview unless otherwise agreed upon
by the parties. The parties are not. The court must have a court reporter present
who shall make a complete record of the interview instantaneously to be part of
the record in the case.
Injunction or Restraining Order
A court order which requires a party to do some act
or prohibits a party from doing some act. Injunctions and Restraining orders can
be entered on an emergency basis (sometimes without notice). Injunctions can be
mutual but mutual injunctions are usually entered by agreement of the parties. In
some states the law now requires that a mandatory Restraining Order is issued at
the beginning of every case that binds both parties. Ask your lawyer for more information
in this regard.
Interrogatories
Written questions served on the other party who is required
to serve sworn written answers within a specified time.
Joint Custody
Joint Custody is merely an agreement which specifies
each parent's powers, rights and responsibilities for the personal care of the child
and for major decisions such as education, health care, and religious training.
It should specify a procedure by which proposed changes, disputes and alleged breaches
may be mediated or otherwise resolved and shall provide for a periodic review of
its terms by the parents.
Judgment
The decision of a court that is appealable.
Jurisdiction
The power of a court to decide a particular matter.
Legal Separation
A court judgment the terms under which the parties will
live apart after separating. While signifying the separation of the parties, it
does not formally dissolve the marriage or permit the parties legally to marry other
persons. It does do all other things a divorce decree does such as divide property,
provide for support and award custody of children.
Litigation
All of the proceedings that take place in the course
of a lawsuit.
Maintenance Spousal Support
Payments made to support a current or former spouse
for the purpose of supporting that spouse.
Marital Property
Interests in property acquired by the spouses during
the marriage
Marital Settlement Agreement
The written agreement made between the parties settling
the issues in a divorce. Divorce lawyers often refer to the Marital Settlement Agreement
as the "MSA."
Mediation
A dispute resolution process in which a disinterested
third party, the mediator, assists the parties in reaching an agreement. Usually,
the mediation process is confidential. Many counties have mandatory mediation of
child custody, parenting and visitation issues (but not of financial matters ancillary
to the parenting issues).
Motion
An application to the court for an order. Generally,
motions are written but occasionally there are oral motions.
Modification
A change in the judgment or order, generally based on
a substantial change of circumstances. The standard motions for modification are
those brought to modify custody and to modify either child support or maintenance.
No-Fault Divorce
Also called "irreconcilable differences." A divorce
granted without proving that one party is guilty of misconduct.
Non-Marital Property
Property which is not marital in character. To clarify
this circular definition, divorce law defines marital property as all property acquired
during the marriage. All other property is non-marital or pre-marital. See FAQ for
further discussion on this topic.
Order
A ruling by the court that is not appealable.
Parenting Time
The term used to describe where, when and under what
conditions the children will be with one parent or the other. Many joint parenting
agreements used to refer to the "visitation" rights of the non-custodial parent.
Many people do not look on the term "visitation" favorably. The thought is that
parents do not "visit" with their children. The non-residential parent may spend
less time with his or her children but that time should not be thought of as "visiting"
time.
Perjury
The crime of lying under oath. It includes lying during
a trial, at a deposition, or in a written affidavit. It can be punishable by imprisonment,
although divorce lawyers know that perjury is generally difficult to prove in many
issues involving divorce proceedings. Divorce lawyers refer to this as the "he said
-she said" problem.
Petition for Dissolution of Marriage
Also referred to as a petition for divorce. This is
the initial filing in divorce proceedings. A summons for dissolution of marriage
will generally accompany the petition for dissolution when the petition is being
formally served. In many cases, the petition for divorce is not formally served
but a copy will be mailed to the Respondent's retained counsel who will then voluntarily
file an appearance - thereby eliminating the necessity of formal service of petition
for dissolution of marriage.
Petitioner
The party who filed the Petition for Dissolution of
Marriage.
Pleading
A document filed with the court which asks for something
or responds to a pleading filed by the other party.
Premarital or Prenuptial Agreements
An agreement signed in contemplation of marriage, which
will address rights as to either dissolution of marriage and/or rights to the estate
of the other person. With regard to the enforceability of premarital agreements,
some states have adopted the Uniform Premarital Agreement Act. It provides for broad
enforceability of such agreements so long as there is fair and reasonable disclosure
of the property or financial obligations of each party, the agreement is executed
voluntarily and the agreement was not unconscionable when executed. Such agreements
addressing divorce often limit a party's ability to seek maintenance (spousal support)
from her or his spouse. Such agreements addressing estate issues often prevent a
party from being able to renounce a will and take a statutory third of the other
party's estate.
Present Valuation
A financial concept. It refers to the time value of
money and goes along with the saying that a bird in the hand is worth more than
two in the bush. In determining the present value, in a future stream of payments,
the future payment stream is discounted back to a present value using a discount
rate. This concept is important in divorce cases both in valuing businesses and
in determining the value in a defined benefit plan (if there is to be other marital
assets awarded in lieu of an interest in the plan) - a swap which lawyers call an
offsetting property settlement award.
Privileges
A client's right to refuse to disclose confidential
communications between the client and certain persons in a professional relationship
with the client. The usual privileges are professionals such as lawyers, doctors
and mental health care professionals.
Pro Se
A party who is representing him or herself in a lawsuit.
A party has the right to represent himself or herself in divorce proceedings. On
the other hand, it is said that the lawyer who represents himself has a fool for
a client. I tell clients that I even hire my own lawyer to handle my real estate
transactions.
Qualified Domestic Relations Order (QDRO)
This acronym is pronounced "QUADRO" or "Q-DRO." An order
of the divorce case (that is, a domestic relations order) that is determined to
be qualified. The "qualified" part of this term generally refers to the approval
(qualification) of the DRO by the plan administrator.
Request for Production
(Also known as a Notice to Produce). A written request
by one party to the other asking the other party to turn over tangible objects,
usually documents.
Respondent
The husband or wife who is sued for divorce.
Response
A document used to answer or respond to the petition
for dissolution of marriage or other pleading. Answers or responses usually admit
or deny specific allegations or claims in the document being answered. In some cases
those allegations not specifically denied are therefore admitted. It is therefore
only necessary to state the allegations which are denied.
Restraining Order
See Injunction
Retainer
See Fees.
Separate Property
See non-marital property.
Service (of Process)
The delivery of official papers by a means prescribed
by law. Usually this is accomplished either through a private process server or
a sheriff's officer.
Settlement
The resolution of disputed issues by agreement between
the parties. Most lawyers use the statistics that 90% of cases are settled rather
than tried.
Stipulation
An agreement between the parties or their lawyers about
issues in the lawsuit. Common stipulations in divorce cases are: 1) stipulation
regarding irreconcilable differences; 2) stipulation for non-contested divorce (usually
based upon a signed marital settlement agreement where one party does not appear
for the last court appearance; and 3) stipulations as to certain facts such as income
levels, values of assets or divisions of assets.
Subpoena
A document served on a party or a witness commanding
appearance at a certain time and place. A Records only Subpoena is sometimes referred
to as a Subpoena Duces Tecum. It is a requirement to produce documents, papers,
or other things listed in the subpoena in lieu of a personal deposition.
Suit Money or Motion for Temporary Attorney Fees
A petition in which one spouse seeks a court order for
the other spouse to pay attorney's fees on a temporary basis (while the case is
pending).
Summons
The written notification of the lawsuit that is served
upon the Respondent. See Petition for Dissolution of Marriage.
Temporary Orders
Orders granting relief between the filing of the lawsuit
and the judgment.
Trial
The final hearing in court to decide the issues in the
case.
Uncontested Divorce
A divorce in which there is no dispute as to how any
of the issues will be resolved.
Venue
The place where a case will be heard. For example, if
the place a case is heard is Marion County , a lawyer might say that the venue is
in Marion County . There are cases where venue is transferred from one county to
another, often due to a motion to change venue. However, the court can order that
the trial take place where it is most convenient. For example, if a spouse moves
200 miles from where the family has lived for 20 years and the evidence (witnesses)
about the children are where the non-moving spouse lives, a court may change venue
back to the former location due to the convenience of the parties.
Visitation
The right of a parent who does not have primary custody
of the child to spend time with the child now called parenting time.