This is an HTML sample from the full PDF downloadable Tao of Divorce eBook. This sample includes the Table of Contents, Preface, Chapter 3 and Authors' Bios. You may order the full version here. |
-- Sun Tzu
Vocabulary was a matter of life and death to the Chinese soldier; if an officer failed to obey orders, he was decapitated. Your legal vocabulary is equally important to your divorce. For example, divorcing couples frequently sign separation agreements without understanding all the legal ramifications, creating bitter post-divorce litigation.
Study the words of divorce to facilitate communication with your lawyer. Your legal vocabulary will give you a tactical advantage.
Abandonment. See Desertion
Abduction (of Child). See Parental Kidnapping
Abuse. See Cruel and Abusive Treatment
Abuse Prevention. See Restraining Order
Action; Actionable. See Cause of Action
Admissible; Admissibility. Any testimony, document, or demonstrative material that is officially considered by the court, i.e., allowed into evidence, generally in compliance with the rules of evidence.
Adultery. Sexual intercourse between a married person and a third party.
Courts once used adultery, once the sole ground for divorce in some jurisdictions, to punish the guilty. Today courts are more interested in the economic impact of adultery, if any, on the marital estate. How much money was spent on the mistress? Think of judges as accountants who want full disclosure and financial accounting for improperly spent funds.
Affidavit. A written statement, voluntarily signed under oath, usually in support of a motion.
Be careful that you have personal knowledge of all matters asserted, or else it “can and will be used against you in a court of law.” If there is any doubt whatsoever, but you still believe something is true, say “Based on information and belief....”
Agreement; Separation Agreement; Property Settlement Agreement; Marital Agreement. A legally enforceable, spousal contract settling all matters.
Generally not referred to as a “divorce agreement” since only the court can grant a divorce. If the parties fail to reach an agreement, the case goes to trial, and the court’s decision and judgment is substituted. Court’s judgments are modifiable based on a “material change in circumstances.” An agreement may be either modifiable or unmodifiable (“surviving”). Typically, these agreements settle issues relating to:
1. Asset and liability division
2. Alimony, health, and life insurance
3. Legal and physical custody, child support, visitation, medical insurance and expenses, and college.
Alienation of Affection. Any intentional, malicious interference with a marital relationship.
Historically, the aggrieved spouse could bring an action against the third party wrongdoer, without filing for divorce. These suits are now rare, however, and are prohibited in some states. Today courts will entertain fault divorces making the co-respondent a defendant in the action, but such defendants are generally not liable financially for their adultery.
Alimony. Court-ordered spousal support, usually periodic payments, but sometimes paid in a lump sum as part of a marital agreement (alimony “buyout”).
More modern terms include “maintenance” and “spousal support.” Payments are tax deductible to the payor and includable in the payee’s taxable income. Similarly situated parties are treated dissimilarly when the only difference is gender. Most courts are sympathetic to women, especially in long-term marriages or when the husband has a high income or greater resources. In their zeal to protect women, some courts favor wives despite their economic equality.
See Rehabilitative Alimony and Temporary Support.
Alimony Pendente. See Temporary Support
Annulment. The court’s judgment that a so-called “marriage” was never legally valid or became invalid after the marriage.
Where a marriage was never legally consummated, for instance if one party was already married, the marriage is said to be “void,” or a “nullity,” i.e., it never existed. In contrast, a “voidable” marriage is valid unless, or until, annulled. Grounds for annulling a “voidable” marriage include serious fraud or a party’s legal incompetence at the time of marriage. Most annulments are obtained for religious reasons through a religious tribunal.
Answer to Complaint (Petition) and Counterclaim. A responsive pleading that answers allegations made in the complaint. A counterclaim sets forth the defendant’s allegations against the plaintiff, as if the defendant were asking for a divorce in the first instance. The defendant is sometimes called the “plaintiff-in-counterclaim” since he makes his initial claim in this pleading.
Defendants must file an answer and counterclaim within a certain time of being served with process, usually 20 days. The plaintiff, in turn, must file an “answer to counterclaim.”
Antenuptial Agreement. See Prenuptial Agreement
Appeal. Review of a trial court’s decision and judgment by a higher court. The appeals court can review the trial court’s “finding of fact” and “conclusions of law.” See Decision and Judgment.
Appeals courts analyze the trial court’s decision and judgment for substantive errors in its “conclusions of the law.” In exceptional cases the trial court’s “finding of facts” are also reviewed. Most findings of facts are extremely difficult to challenge because appeals courts defer to the trial court’s ability to weigh evidence. Unless the trial court’s findings of fact cannot possibly be supported by the evidence, such appeals will fail. Judges have discretion to believe or disbelieve all evidence presented, and appeals courts will not second guess the trial court on its finding of facts.
While challenging a trial court’s “conclusions of law” is less difficult, states grant divorce judges substantial discretion in fashioning judgments. Therefore, appeals are often unsuccessful except for substantial errors of law that significantly and adversely impact a party; otherwise, the mistake is considered “harmless error.” Whether your appeal succeeds may depend more on your gender than the merits of your case. In Massachusetts, for instance, over 80% of appeals brought by husbands were dismissed whereas over 80% of appeals brought by wives prevailed.
Appear; Appearance; File an Appearance. A court filing registering the name of your lawyer, or, if you represent yourself, your name as “pro se.”
Your lawyer must file an appearance with the court. All pleadings and notices are then sent to her address which constitutes proper service on you. If you appear without counsel, you are said to appear pro se.
Once counsel files her appearance, she cannot withdraw her appearance without your permission or leave of court, usually by motion. Sometimes courts will not allow counsel to withdraw unless a new lawyer (“successor counsel”), or the party herself, files an appearance. If no successor appearance is filed, courts frequently deny this request, even if the client fails to pay attorney’s fees. Counsel then becomes your involuntary servant, but don’t expect zealous advocacy from a slave. You may get what you pay for. Obviously, divorce lawyers view this problem as justification for large retainers.
Arbitration. A legally binding, non-judicial procedure held before a neutral third party, the “arbitrator,” who acts as private judge.
Unlike mediation, neither party can unilaterally terminate the process, and both parties are bound by the arbitrator’s decision, as if a judge acted in her official capacity. In some states, judges refer certain cases or aspects of cases for arbitration.
Arrearages. The deficiency between the amount, if any, paid and the amount required under court order. If payments are made voluntarily on a de facto basis, i.e., not under court order, any reduction in the amount of such payments is not considered an arrearage.
Attachment; Motion for Attachment. A lien on personal or real property created by court order (known as a writ of attachment) in response to a motion for attachment.
Attachments are issued by courts to preserve marital assets. An important adjunct to restraining orders, they are used if there is substantial risk that a restraining order would be violated. For instance, if the marital home is in the husband’s name, and he decides to sell the house despite a restraining order, the attachment puts the world on notice that any purchaser would be subject to the wife’s rights. Obviously, no buyer would buy nor lender lend under these circumstances. Most orders of attachment are issued ex parte (see below).
Attorney for the Child(ren). A court-appointed attorney who represents the stated wishes of the child(ren). Unlike a guardian ad litem who acts in the child’s best interest by substituting her own judgment for the child’s, the attorney for the child(ren) must promote those causes espoused by the child(ren) and generally not substitute her own judgment.
The lawyer’s role is not clearly defined when representing very young children. In these cases, lawyers must substitute their own judgment on obvious matters such as protecting a child’s bank account from an untrustworthy parent. Bankrupt; Bankruptcy. The inability of a person to pay his bills as they become due. Also, a person’s legal status in federal bankruptcy court. Alimony and child support are generally not affected, but property divisions, including the marital home, are unprotected from third party creditors.
If concerned about your spouse filing for bankruptcy, consider an attachment on his portion of the marital assets, thus achieving “secured creditor” preferred status in bankruptcy court.
Best interest of the child. The legal standard or doctrine for making child-related decisions.
Bifurcation; Bifurcated Trial. In some states, the grounds for divorce, and all property rights/support obligations, are tried separately.
Blended Family. New term for stepfamily.
Bomber. A old term to describe an unethical divorce lawyer who sleeps with his clients.
If your lawyer tries this on you, politely tell him “no,” then immediately report him to the state bar. Sleeping with a divorce client is a serious ethics violation -- besides, lovers make bad lawyers.
Burden of Proof. The party asserting a claim must prove such claim is true.
In divorce, each party making a claim for a fault divorce must prove such fault.
Cannons of (Legal) Ethics. State rules, usually established by each state’s supreme court, that regulate the behavior of lawyers. Violations can lead to warnings, fines, suspensions, and even license revocation.
Regulations are pro-consumer; they attempt to protect innocent parties from unscrupulous and improper behavior. If you think your lawyer is doing something wrong, i.e., it doesn’t pass the “smell” test, review the Cannons for possible violations. Also called “Code of Professional Responsibility.”
Capias. A civil arrest warrant ordering the sheriff or other officer to take a person into custody and deliver him to court. This procedure is used when a party refuses to appear in court.
Cause of Action. A lawsuit. To bring an action (lawsuit). Certain wrongful acts are actionable offenses, meaning that such acts are the ground for a lawsuit, i.e. they create a cause of action.
Change of Venue. See Venue; Change of Venue
Child Abduction. See Parental Kidnapping
Child Custody. See Custody--Legal and Custody--Physical
Child Support. Court-ordered payments from the non-custodial parent to the custodial parent that are not tax deductible by the non-custodial parent, nor includable in the custodial parent’s taxable income.
Child Support Guidelines. State guidelines requiring the non-custodial parent, under normal circumstances, to pay child support based on a percentage of income.
The federal government mandates that all states establish guidelines for child support. The battle ground in many cases is the definition of “income,” especially “in-kind” compensation such as a company car. Contact your state’s child support enforcement office as set forth in the State-by-State Resrouce Center.
COBRA (Consolidated Omnibus Budget Reconciliation Act). Federal legislation that guarantees all persons covered by medical insurance, the right, for a monthly fee, to continue coverage even if employment or marital status changes.
COBRA covers ex-spouses even after one party remarries, for a fixed time period. For instance, if you become ineligible by virtue of your spouses’ remarriage, you may continue on his policy for approximately 18 months. It can be expensive, sometimes up to $600 per month. Make sure all health insurance matters are covered in your separation agreement, including current and future medical insurance and uninsured medical expenses.
Code of Professional Responsibility. See Cannons of (Legal) Ethics
Cohabitation. Unmarried persons living together as if married.
Cohabitation becomes a problem when 1) in parties who have minor children the custodial parent takes in a lover during the divorce process and the non-custodial parent files a motion to prevent such behavior, and 2) an ex-spouse, usually ex-wife receiving alimony, cohabitates rather than remarries in order not to lose her alimony. Many judgments terminate alimony upon remarriage. Cohabitation during divorce can make a bad impression on the court and is usually unwise.
Collaborative Law. A non-adversarial process where the parties and their
lawyers agree to avoid litigation through cooperation. See http://www.colaborativelaw.org.
Commencement of Action. The official beginning of your case, defined as the time of filing your complaint for divorce with the court.
Complaints are not accepted for filing unless they comply with court rules regarding form and substance and are accompanied with the filing fee.
Common Law. A body of law, sometimes referred to as “case law,” developed by judges over many years which establishes how courts interpret statutes and handle matters not specifically covered by statutes.
Common Law Marriage. A judicially-recognized marriage in some states, generally based on cohabitation. Courts in these jurisdictions may recognize marriages despite the parties’ failure to comply with local marriage statutes.
Community Property. A system of property division which divides equally all property -- no matter in whose name it is held -- acquired during the term of the marriage, excluding inheritances and gifts in some jurisdictions.
There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (quasi-community property). In these jurisdictions property acquired prior to the marriage stays with the party who acquired it. Certain jurisdictions exclude property that comes into the marriage by gift and inheritance. Some community property states allow equitable distribution where justice is served. These rules vary state to state and are fraught with exceptions. Consult local counsel.
Complaint for Contempt of Court. See Contempt of Court, Complaint for
Complaint (Petition) for Divorce. A complaint for divorce initiates the divorce proceeding by identifying the parties; stating the grounds for divorce; stating all claims against the defendant; and requesting the court to grant a divorce, grant custody, divide property, and order support. All complaints must be filed with the court and served along with a summons.
Complaint for Modification. See Modification, Complaint for
Confidential Relationship. See Privilege
Conflict of Interest (Rules). Lawyers are prohibited from entering certain relationships in which the lawyer, by virtue of his profession, received or appeared to receive confidential information about the opposing party. No lawyer can ever represent both sides in a divorce, even if uncontested.
If you interview a divorce lawyer and decide not to retain him, that lawyer is barred from representing your spouse. If there is a certain lawyer that you don’t want your spouse to use, consider paying for an appointment and sharing confidential information. Whether you use that lawyer or not, he is barred from representing your spouse.
Conjugal; Conjugal Rights. The right of married persons to enjoy each other’s physical comfort.
Consolidation. The joining of two related cases.
Divorce and independent marriage-related torts such as assault and battery, malicious interference with one’s business are often consolidated. Actions against third parties related to the marriage, such as a spouse’s parents, can also be consolidated based on the legal standard, whether “justice would be served.”
Contempt of Court, Complaint for. Legal action brought when the plaintiff/petitioner alleges a willful failure to obey a court order or judgment.
Most such complaints are filed against husbands or ex-husbands for failure to make support payments. The defendant is generally entitled to an evidentiary hearing (trial) since he faces possible incarceration. Even where the court finds the defendant guilty of contempt, defendants are usually given the opportunity to comply with the violated order, or “purge the contempt.” Jail is an extraordinary remedy. Remember, the object is not to kill the golden goose; jailbirds can’t pay support.
To commence a contempt proceeding in many jurisdictions a complaint for contempt must be filed with the court, and a copy of the complaint, along with a summons, must be served on the defendant.
Contested and Uncontested Divorce. In contested divorces, the parties are adversarial, they cannot agree to a separation agreement. In uncontested divorces, the parties agree to all matters, and present an executed separation agreement to the court for approval.
Contingency Fee. In divorce cases, an unethical type of fee agreement that provides the lawyer with a percentage of your settlement or judgment.
No greedy, unethical lawyer has any business taking a percentage of your settlement or judgment. Why should a non-spouse share in the marital estate? Does your lawyer intend to pay you alimony? While appropriate in personal injury and certain other types of cases, contingency fees have no place in divorce proceedings.
If you interview a lawyer who wants a contingency fee, say “have a nice day” and report him to the state bar. Such fees in divorce cases are prohibited by the Cannons of Ethics in most states. While the term “legal ethics” appears to be an oxymoron, state regulators take these charges seriously.
Co-respondent. A third-party co-defendant in a divorce action accused of committing adultery with the defendant.
When adultery was the sole ground for divorce, this awkward procedure was commonplace. Today few divorces involve named third- party defendants. Question your lawyer whether the potential benefits are worth the time, expense, and hard feelings. Do not allow your emotions to control this decision.
Counsel Fees Pendente Lite, Motion for. “Pendente Lite” means during the litigation. Generally, a motion is filed by the wife requesting sufficient funds from the husband, or from the marital estate, to prosecute or defend the divorce action.
Many courts routinely grant fees in order to “level the playing field.” If you don’t have access to liquid assets, consider having your lawyer filing this motion. If your spouse is overly litigious, ask the court for him to pay your fees out of his portion of the marital estate.
Counterclaim. See Answer and Counterclaim
Court. The term “court” has three meanings:
1) a physical place, e.g., courtroom, courthouse
2) a quasi-political entity, e.g., superior court, family court 3) the actual judge or justice acting in her official capacity
Court Arbitrator. See Family Service Officer; Court Service Officer; Court Mediator; Court Arbitrator
Court Docket. The formal court record of proceedings before it. Notations of all pleadings, orders, and judgments are entered into a docket book.
In divorce court the first entry is the complaint or petition for divorce. The final entry is the judgment of divorce. If the case resurfaces because of a complaint for modification or a complaint for contempt, the docket is reopened and continued.
If you are concerned that your spouse is about to file for divorce, visit the court to examine the docket. Ask how long a new filing takes to show up on the docket.
Court Investigator. See Investigator; Court Investigator
Court Mediator. See Family Service Officer; Court Service Officer; Court Mediator; Court Arbitrator
Court Order. See Order; Order of the Court
Court Services Officer. See Family Service Officer; Court Service Officer; Court Mediator; Court Arbitrator
Courtroom Etiquette:
1) Treat the judge respectfully. Never interrupt or be argumentative, always ask permission to speak. In An Officer and a Gentleman, drill sergeant Lou Gossett reprimands recruit Richard Gere for referring to the sergeant as “you.” Gossett points out that a “ewe” is a female sheep. Always address the judge as “your honor,” “judge,” or “the court” -- but never refer to the judge as “you.” Finally, you may feel the judge is biased, disrespectful, insensitive, or just plain dumb. You have a right to these feelings, but never, ever, treat the court disrespectfully, especially if you want respect.
2) Treat opposing counsel respectfully. Wait your turn to speak and don’t interrupt or make faces and gesticulate when opposing counsel is speaking. Great self-control is necessary, especially when opposing counsel intentionally lies or inadvertently makes misrepresentations to the court based on his client’s misrepresentations to him. You’ll get your turn.
3) Dress appropriately, be punctual, and be serious. Cry if you must, but avoid overly dramatic displays. Do not raise your voice or get into side conversations or fights with yourspoused or his lawyer.
4) Tell the truth.
Court’s of Equity. See Equity; Courts of Equity
Coverture. The period of time during which a women is married.
This term is used when establishing the value of property acquired during the term of the marriage, i.e., coverture. For instance, pensions are often appraised based on coverture; only those contributions during the term of the marriage are taken into account.
Cross-examination. Following the direct examination of a witness, cross examination is the follow-up questioning (“examination”).
If your lawyer is conducting a cross-examination, that means the witness was first called by the opposing side. For instance, after your spouse testifies during direct examination, your lawyer has the opportunity to cross-examine. As you know, these can be messy since the rules of evidence allow almost anything that will impeach the witness.
Cruel and Abusive Treatment. Ground for divorce in a fault divorce, wherein the plaintiff must prove physical or emotional harm to her or himself.
Ask your lawyer for the legal definition in your state. If you forego this claim, you always retain the right at trial to enter into evidence “the behavior of the parties during the marriage.” See Fault and no-fault Divorce. Failure to assert abuse in the complaint simply precludes the court from granting a divorce on this ground, but the court is free to consider evidence of spousal abuse in making its decision.
Curtesy. See Dower
Custodial Parent. Usually refers to the parent with whom the child(ren) reside(s), i.e., the parent with Physical Custody or Primary Physical Custody.
Custody--Legal. A legal status or “custodianship” vesting authority to approve all major decisions affecting a minor child. “Joint,” “split,” and “shared” legal custody require both parents’ approval of all major decisions.
In cases of child abuse, and in highly contested custody proceedings where the parties can’t communicate, sole legal custody may be granted to one parent, usually subject to visitation or supervised visitation. If parents with joint legal custody cannot agree about a major decision, then the court makes the decision. Courts often defer to the custodial parent, i.e., the parent with primary physical custody.
Custody--Physical. Relates to the physical location of the child. The adult with whom the child resides is said to have physical custody. Such terms as “sole,” “primary,” “shared,” and “joint” are used to describe various parenting and visitation plans.
Most custody fights are fought over physical custody since there is usually a strong presumption of joint legal custody. Studies demonstrate that protracted custody fights have devastating effects on the mental health of children. Years later as adults, these victims still suffer.
Decision and Judgment. A decision is a judge’s “finding of facts” and “conclusions of law.” The decision forms the factual and legal basis of the court’s judgment.
Judges have great discretion to interpret the facts and draw inferences therefrom. See Appeal.
Decree Absolute. See Interlocutory Judgment; Interlocutory Decree; Judgment Nisi
Decree of Dissolution. See Divorce Decree.
Decree Nisi. See Interlocutory Judgment; Interlocutory Decree; Judgment Nisi
de facto. Latin meaning “in fact.” Acting in a certain manner, usually as if complying with what a court might order, without such order being in place. For instance, if one parent is making voluntary child support payments pursuant to the guidelines, he is paying de facto guideline support, even though no court has so ordered.
In contrast, de jure means in compliance with an order or judgment.
Deposition. See Discovery; Pretrial Discovery
Desertion. One of several grounds for a fault divorce. Most states require the plaintiff to prove several of the following factors: 1) the defendant left the marital home for over one year; 2) the parties failed to agree to such departure; 3) the party who left failed to pay support; and 4) the reason for the departure was not caused by the plaintiff.
Ask you lawyer which factors apply in your state. This claim is cumbersome and may not be worth the trouble.
Disciplinary Rules. See Cannons of (Legal) Ethics
Discovery; Pretrial Discovery. Discovery is the formal procedure for gathering information pursuant to rules of court. The primary methods are:
1. Request for financial statement Immediately demand a financial statement and follow up with additional requests during the pendency of the case. Your objective is twofold: 1) fact-finding and 2) using any contradictory information among statements to impeach your spouse t trial
2. Request for production of documents and things If you followed our advice, most documents are already in your possession. Don’t waste time making unnecessary requests for production, unless for strategic reasons your want to fool the enemy into believing that you don’t possess certain documents.
3. Interrogatories propounded You are allowed to ask (propound) written questions (interrogatories) to your spouse. Skip the boiler plate, and keep questions focused. Your objective is information gathering and preparing evidence for trial, even if the evidence consists merely of perjury, or inconsistent statements used to impeach your spouse. Unlike “admissions” (see below), the court may limit the admissibility of the answers to interrogatories propounded.
4. Depositions; Party Deposition A formal, out of court questioning under oath of a party (the “deponent”) by opposing counsel. A stenographer is usually present and produces a transcript. Used for information gathering, depositions also force a witness to commit to a certain story that cannot be changed easily at trial without facing impeachment. Depositions are expensive, provocative, and can offer your opponent a dress rehearsal for trial. Don’t call them unnecessarily.
5. Deposition Subpoenas; Subpoena Duces Tecum A third-party subpoena to attend a deposition and bring requested documents. These subpoenas are typically issued to employers and business associates. We often use this procedure when opposing party is uncooperative, dishonest or doesn’t keep good records. If you want documents but not testimony, arrange for them to be delivered without the expense of a deposition.
6. Keeper Deposition; Keeper of the Records Deposition Same as the Subpoena Duces Tecum, it forces the person responsible for records at a business to produce and authenticate documents. Such person’s sole role is usually identification of documents. Keepers usually have no substantive testimony relating to the case.
7. Request for Admissions Similar to interrogatories but 1) the questions require a yes or no response, “affirmed” or “denied” and 2) the response is automatically admissible evidence at trial for any relevant purpose.
8. Motion for physical or mental examination Physical examinations are sometimes requested when the opposing party, usually the husband, asserts that a physical disability impairs his ability to make support payments. Mental examinations are more unusual, occurring mostly in contested custody cases, or if one party is seriously impaired. Requesting a mental examination is highly provocative, so expect retaliation in the form of a request for you to be examined likewise.
9. Request to enter upon land A party can use the discovery to inspect real estate, often relating to valuation.
Discovery Problems. If you are being unreasonably oppressed by discovery, ask the court for a “protective order” to quash, i.e., cancel, or limit the scope of a deposition. If the other side fails to cooperate with your requests, you can file a “motion to compel” and request sanctions. Fee awards are unusual; judges often tolerate substantial misbehavior before punishing the guilty.
Disinherit; Disinheritance. To deprive a rightful heir from his or her inheritance.
State laws prohibit spouses from disinheriting each other. The surviving spouse is usually entitled to at least one third, no matter what is contained in the will. See Dower and Curtesy. Also see Inheritance; Inheritance Rights; Inheritance Expectancies.
Divorce Agreement. See Agreement; Separation Agreement; Property Settlement Agreement; Marital Agreement
Divorce Decree; Decree of Dissolution; Judgment of Divorce. The court’s final judgment after expiration of the interlocutory or judgment nisi period. Upon this date you are legally divorced and can remarry. Generally, the final decree occurs automatically upon termination of the waiting period. Additional court filings and appearances are usually not required.
Divorcement; Bill of Divorcement. Same as divorce and divorce decree.
Docket. See Court Docket.
Domestic Tort. See Tort; Marital Tort; Domestic Tort
Domicile. A person’s “legal” home, i.e., where the person spends most of his time, or intends to return if currently living elsewhere.
In divorce, domicile is important in establishing jurisdiction and selecting venue.
Dower. The wife’s common law right to inherit from her husband.
In most states the surviving spouse cannot be disinherrited and is entitled to one third of the husband’s property. Conversely, the husband’s right to inherit from the wife is called curtesy. Be advised that until your judgment of divorce is absolute, your spouse may have the right to inherit if you die during the nisi period. In some states, however, an executed separation agreement waiving the right to inherit may supersede inheritance rights prior to the judgment becoming absolute.
Emancipation. In divorce court, “emancipation” does not necessarily mean “legal majority,” i.e., 18 years old. Depending on the state and the educational status of the child, emancipation may occur between ages 18 and 23.
Make sure your separation agreement defines “emancipation” as occurring after four years of college, so you continue receiving child support while your child(ren) attend(s) college. They need a place to come home for summers and vacations.
Equitable Distribution; Equitable Assignment; Equitable Division (of Property). In equitable distribution states, all property, whenever or however acquired, regardless of legal title, is subject to equal or unequal division.
Most states divide property according to equitable distribution statutes. Parties often have misconceptions about what is subject to division. For instance, in some states, if your spouse inherits money before marriage, even if the funds were always kept in his name and he never used them for family purposes, the funds are still subject to division. Such funds are part of the marital estate subject to equitable division. In this situation the division could be unequal, especially if the marriage was of short duration.
Each state’s divorce laws set forth mandatory “factors” judges must consider before making an equitable property division or awarding alimony. Some states also have “discretionary” factors courts may consider. Here are some mandatory “factors” incorporated into most state laws. Ask you lawyer for a copy of your state’s statute.
1. Length of the marriage
2. Age, health, occupation of the parties
3. Station in life and life-style
4. Liabilities and needs
5. Contribution to the marital estate (economic, domestic, child-rearing, etc.) 6. Assets and liabilities, sources and amount of income
7. Behavior of the parties during the marriage
8. Vocational skills, employability
Equity; Courts of Equity. Equity is a body of law that concerns itself more with fairness than with the strict, and sometimes harsh, application of common law.
Historically, there were separate “courts of equity,” but today, most courts have “equity jurisdiction,” i.e., they can apply “equitable principles” to cases, including divorce. One commentator called these courts “anti-law” courts because they were able to circumvent unfair laws. But do not expect your judge to ignore statutes and established common law.
Ethics; Legal Ethics. A code of conduct, also known as the Code of Professional Responsibility, imposed on attorneys. Violations may subject the attorney to disciplinary proceedings and malpractice claims. See Cannons of (Legal) Ethics.
Evidence. Any testimony, document, or demonstrative material.
Evidence cannot be considered, i.e., used as the basis of a court’s decision, unless such evidence is admissible under the rules of evidence. Note that when courts consider making temporary orders at motion sessions, the rules of evidence generally do not apply since the court’s orders are only temporary, generally without prejudice at trial. See Rules of Evidence.
Evidentiary Hearing. See Trial; Hearing on the Merits; Evidentiary Hearing
Exhibit(s). Any evidence attached to a pleading or introduced at trial, for example, a husband’s pay stub attached to a motion for temporary support.
Ex Parte: hearing, motion, order. Ex parte means without notice to, or attendance of, the opposing party.
In response to an ex parte motion, i.e., a motion without notice to the opposing spouse, the court conducts an ex parte hearing without the attendance of the spouse. Based on this hearing , an ex parte order is issued, and the opposing spouse receives notice of the fiat accompli.
Often attachments are issued ex parte to avoid giving notice to the defendant, since, a person who knows his property is about to be attached might quickly sell or mortgage it and secrete the money.
Expert Witness. In divorce cases, most experts are called to testify as to the value of the marital home, pensions, and privately-held businesses. In child related disputes, mental health professionals are often called to testify.
Fair and Reasonable. The judicial standard for approving marital agreements.
Note that in non-divorce areas of the law, there are no standards of fairness; winner takes all, and the lawyers fight to the death. In divorce, lawyers’ zealous advocacy must be tempered by justice, however, divorce lawyers often act as if they represent the plaintiff in a personal injury case, trying to win at all costs without consideration of the consequences. Avoid these zealots.
Family Service Officer; Court Service Officer; Court Mediator; Court Arbitrator. Court employees to whom cases are referred for dispute resolution.
As disinterested third parties, these folks are useful in bringing parties closer together. If one side takes an unreasonable position, the court mediator can reel him in.
Fault and No-fault Divorces. In fault divorces, the complaint for divorce must state grounds for divorce. They include cruel and abusive treatment, adultery, abandonment, and other types of misconduct.
Don’t be fooled by terminology. Each ground is a term of art, a specific legal definition, not a layman’s definition. Ask your lawyer about grounds and their definitions. But remember, conducting a moral campaign to prove fault may backfire. It’s a high price for self-exoneration, so question counsel whether it really makes sense.
No-fault complaints for divorce merely allege an “irretrievable breakdown” of the marriage, or use similar language. The court must find that the marriage has “irretrievably broken down,” leaving no chance of reconciliation.
Since the 1970s most states have allowed no-fault divorces. No-fault divorces are contested or uncontested. Where the parties present an agreement for the court’s approval, their divorce is said to be uncontested. If the parties can’t negotiate an agreement, their divorce is contested and goes to trial. Fault and Punishment. Divorce judges seek fair results, not retribution.
Many parties believe judges punish fault by penalizing the guilty. Judges are not grand inquisitors reigning terror on unfaithful spouses. Behavior must be outrageous, and we mean totally shocking, before most judges will punish the guilty.
Fee Agreement; Retainer Agreement. The written contract between you and your lawyer.
The Fee Agreement should provide for monthly invoices; hourly billing (including the rates of the attorney, associates, and paralegals); the amount of retainer, if any; how the retainer is replenished if depleted; and the disposition of any funds not used. If the Fee Agreement allows the lawyer to keep any unused portion of the retainer, think of your local supermarket cashier saying, “it is our policy not to give change.” Never say, “keep the change,” when thousands of dollars are involved. Avoid these crooks.
See Contingency Fee Agreement and Success Fee Agreement for ethical problems with these types of Fee Agreements.
File; Filing. Any document submitted to and officially received, i.e., “docketed” by, the court.
Final Judgment. After a court enters a final judgment, you may remarry. See also Interlocutory Judgment; Interlocutory Decree; Judgment Nisi.
Financial Statement. Each party must complete, file, and serve a court-furnished financial statement, often printed on colored paper so it can be easily identified “sealed,” i.e., kept out of records available for public inspection.
Perhaps the most important divorce document, but often neglected by many lawyers, it is a major trap for the unwary. Honest mistakes “can and will be used against you in a court of law.” For example, monthly finances can’t be converted into weekly numbers by dividing by 4, as there are 4.33 weeks in a month. We see excellent lawyers on big-money cases blunder. Make sure your lawyer focuses on details. It is worth the additional expense in legal fees. If counsel wants to wing it, get a new lawyer, especially if the case is headed for trial. See Discovery.
Find; Findings. After considering the evidence presented, a court or jury interprets the evidence and sets forth what it believes, i.e., finds, are the actual facts. Courts have great latitude in weighing evidence and in believing or disbelieving witnesses. The court’s findings, along with its “conclusions of law,” form the basis for the court’s decision. See Decision and Judgment.
Forensic. Of, or pertaining to, courts of law
In divorce, forensic accountants are used to value marital assets, and forensic psychiatrists/psychologists are used in custody and visitation cases. Although many experts are competent, few have courtroom, i.e., forensic experience. Make sure counsel prepares your forensic expert for a rigorous cross-examination.
Fraud. Making a material misrepresentation or failing to disclosure a material fact to induce another to give up something of value.
Most fraud claims in divorce relate to fraud in the inducement to marry (see Annulment), separation agreements, and the introduction of evidence at trial. In order to upset an earlier judgment, the fraud must be material, and the plaintiff (victim) must prove that 1) she suffered substantial harm as a result, and 2) she could not have detected the fraud at the time it occurred by using reasonable care.
Full Faith and Credit. A term found in the United States Constitution (Art IV, Sec. 1) requiring each state to honor the legal judgments of other states.
Such judgments must comply with the United States Constitution in all other respects. If a court did not have jurisdiction over a party (for instance, the person never set foot in the state), then a judgment affecting that person might violate the “due process” clause of the Constitution.
Garnishment; Wage Assignment; Wage Attachment. A court order to a third party, usually an employer, requiring the employee’s wages to be attached (automatically deducted from a paycheck) and assigned (paid) to another party, usually the wife.
Most states favor attachment for support payments. It avoids late or missed payments and saves court time. Fewer contempt of court actions are filed. A “contingent” or “suspended” wage assignment requires the completion of appropriate forms, and does not become active unless, and until, payments are missed. This is a strong inducement for your spouse to stay current on his payments.
Grandparent Visitation. See Visitation, Grandparent
Ground(s) for Divorce. Each state’s divorce statutes set forth certain improper or troublesome behavior that constitutes a “legal reason” for the court to grant a divorce.
The following list, based on Massachusetts law, is for illustrative purposes only. Each term has a legal definition which may differ from commonly used English. Your state may 1) not recognize all the grounds set forth, and 2)may include other grounds. Consult local counsel. See Fault and No-Fault Divorce.
1. Adultery
2. Cruel and abusive treatment
3. Utter desertion
4. Long-term incarceration
5. Gross and confirmed habits of intoxication
6. Non-support 7. Impotency
8. Irretrievable breakdown of the marriage (no-fault)
Guardian ad Litem (“G.A.L.”). A court-appointed individual who, for the purpose of pending litigation, puts himself in the shoes of a legally incompetent person such as a minor child. He also investigates the matter and files a report with the court
G.A.L.s are usually lawyers or mental health professionals, depending on the court and circumstances. They investigate the matter, use their own judgment in determining the “best interest of the child,” and report their findings and recommendations to the court. In contested custody and visitation matters, courts frequently appoint G.A.L.s for the children.
If a G.A.L. is appointed in your case, treat him respectfully -- return phone calls and be cooperative. Don’t alienate the G.A.L. despite any resentment you may harbor. It will only hurt your children. Courts sometimes appoint an attorney for the child(ren). Unlike the G.A.L. who uses her independent judgment, the appointed attorney promotes the stated wishes of the child. In other words, she takes orders from legal incompetents. See Attorney for the Child(ren).
Hague Convention on the Civil Aspects of International Child Abduction. See Parental Kidnapping.
Hearing on the Merits. See Trial; Hearing on the Merits; Evidentiary Hearing
High Conflict Divorce. Another name for highly contested cases.
Hold Harmless; Hold Harmless Agreement. The contractual assumption of certain liabilities by a party who agrees: 1) not to look to the other party for assistance in satisfying such liabilities, and 2) to defend (“indemnify”) the other party against third party claims, if a third party, say a creditor, sues you.
If your spouse agrees to indemnify you, he will defend any actions against you including paying your attorney fees, court costs, and damages against you, if any are awarded.
Impeach; Impeachment of Testimony. Discrediting a witness by proving lies, inconsistencies in stories told, and untrustworthiness. The witness may be impeached during cross-examination or by the direct testimony or evidence of another witness. See Direct and Cross Examination.
Prior inconsistent statements made at a deposition or in written interrogatories are classic examples of impeachment during cross-examination. In Camera Hearing. A closed-door hearing in judge’s chambers, usually concerning sensitive child-related issues.
Infant. A person who has not reached legal majority, usually 18 years of age. Also, referred to as a “minor,” or unemancipated child.
Inheritance; Inheritance Rights; Inheritance Expectancies. In equitable distribution states, inheritance rights, say from your parents, can be considered by the court.
Note that most inheritance “rights” are mere expectancies, i.e., they are not vested since you may be disinherited. As a practical matter, even if the court takes into account expectancies, they are generally not given much weight, especially if one’s parents are healthy. Courts avoid placing an economic value on assets of uncertain worth that may or may not be received upon some uncertain future date.
Injunction; Injunctive Relief. A court order prohibiting certain activity. See Temporary Order; Temporary Restraining Order
Injunctions are generally “negative,” i.e., they prohibit certain activities. Injunctions which require certain activity are called “affirmative” injunctions. Outside divorce, most injunctions are “negative.” It would be impossible to enforce certain affirmative orders, such as requiring an opera singer to sing. Affirmative injunctions are more common in divorce cases especially since they relate to minor children, often covering to visitation. Property-related injunctions are also common, usually restricting the sale or transfer of property, borrowing, and spending on non-necessities. See Restraining Order.
Innocent Spouse; Innocent Spouse Rule. Section 434(c)(1) of the Internal Revenue Code protects an “innocent spouse” from tax liability if certain conditions are met:
1. A joint return was filed
2. The return contained a “grossly erroneous” error
3. The innocent spouse establishes “lack of knowledge 4. In light of all the “facts and circumstances” it would be “inequitable” to impose the tax on the innocent spouse
Tax counsel should be consulted.
Interlocutory Hearing. Any court hearing at which a pretrial order or ruling is requested.
Interlocutory Judgment; Interlocutory Decree; Judgment Nisi. The initial judgment of divorce. When courts grant divorces, their judgments are not final until the expiration of a statutory “waiting period” known as the interlocutory or nisi period. It begins when the interlocutory judgment enters and ends upon the “final judgment,” “judgment absolute,” or “final decree.” State law varies greatly in this regard, so check with counsel.
Despite your judgment of divorce nisi or interlocutory decree, you are still legally married and cannot remarry until the judgment becomes “final” or “absolute.” Also, during the interlocutory or nisi period, your spouse has the right to inherit from you unless a separation agreement waiving such rights was executed. Check with counsel if you are feeling mortal.
Our misguided legislatures, in an effort to save obviously failed marriages, require this waiting or “warming-up” period in the highly unlikely event the parties reconcile. We have heard of “cooling off” periods before gun purchases, but our lawmakers are unrealistic if they think a warming-up period can save marriages after an interlocutory judgment. Besides, it would be easier for parties to remarry than stop the clock on an interlocutory judgment.
Interlocutory Order. See Temporary Order; Temporary Restraining Order
Interrogatories. See Discovery; Pretrial Discovery
Intestate; Laws of Intestacy. A person who dies without a will is said to die intestate.
State laws of intestacy establish who inherits, and in what percentage. Surviving spouses usually inherit the entire estate except in the case of surviving children who are entitled to usually two thirds, while the surviving spouse inherits the remaining one third. Rules vary from state to state.
Investigator; Court Investigator. A person appointed by the court, usually to investigate child-related matters, and file a report with the court.
Unlike the Guardian ad Litem, the investigator does not “stand in the shoes” of the minor child(ren).
Irretrievable Breakdown. The legal grounds for no fault divorce in most states.
The court must be convinced, i.e., find, that the marriage has “irretrievably broken down” and that there is no chance of reconciliation. If your case is uncontested you may have to sign an affidavit stating that the marriage is “irretrievably broken down.” It is filed along with your joint petition and separation agreement before an uncontested, no-fault divorce is granted..
Joint Custody. See Custody, Legal and Custody, Physical
Joint Petition. When both parties want the court to do the same thing, such as “dissolve a marriage” due to an irretrievable breakdown (no-fault) and approve a separation agreement (uncontested), the parties jointly request (by joint petition) the court to grant the divorce.
Joint Property. Property held in the name of both spouses. Except in Mississippi, legal title is usually not relevant in dividing property. Basically, one spouse can’t say, “honey, the property is in my name, so you don’t get any.”
Judgment. See Decision and Judgment
Judgment Absolute; Final Judgment. See Interlocutory Judgment; Judgment Nisi
Judgment of Divorce; Judgment of Divorce Absolute. See Divorce Decree
Judgment Nisi. See Interlocutory Judgment; Interlocutory Decree; Judgment of Divorce Nisi
Judicial Separation. See Legal Separation
Jurisdiction. The court’s legal authority to hear your case and issue legally enforceable orders and judgments. Usually, the court in the county where you last lived together has jurisdiction over the divorce. If one party permanently leaves the state, both states may have jurisdiction. Ask you lawyer about this tricky area of jurisprudence.
Legal Custody. See Custody--Legal
Legal Ethics. See Ethics; Legal Ethics
Legal Separation; Separate Support; Separate Maintenance. Available in some states, a legal separation is similar to a divorce, except no divorce judgment is granted that ends the marriage.
In response to a complaint for legal separation or separate support, the court may provide remedies relating to property (in some states) and support. Generally, a complaint for divorce or annulment is necessary before a court orders a final property division. Also called judicial separation.
Lien; Spousal Lien on Marital Property. See Attachment
Maintenance. See Alimony
Malpractice (Legal). The improper or incompetent behavior of your attorney. Violations of the Cannons of (Legal) Ethics often constitute legal malpractice.
“Mandatory Factors” (to be Considered by the Court). The factors a court must consider before making a final decision relating to property division and alimony. Some states also have “discretionary factors” a court may consider. See Equitable Distribution.
Marital Assets; Marital Property; Marital Estate. See Equitable Distribution and Community Property
Marital Agreement; Marital Settlement Agreement. See Agreement
Marital Tort. See Tort; Marital Tort; Domestic Tort
Marriage Certificate. The official certification (with raised seal) of your marriage issued by a public entity.
Make sure you have an official copy with a raised seal; religious certificates are generally unacceptable. Contact the city or town where you were married or your state.
Master. See Special Master
Mediation. An informal, voluntary process allowing parties to work with a neutral third party (the “mediator”) to develop a separation agreement. An agreement developed with a mediator is said to be a “mediated agreement.”
Where appropriate, mediation is an excellent way to develop a separation agreement. Remember, the process is voluntary, so if either party refuses to continue, the mediation is terminated. Mediation requires cooperation and communication between the parties. You must trust each other financially to make full disclosure of each other’s financial condition and future earnings opportunities. Each party has his or her attorney review the agreement before it is signed.
Mediators are not marriage counselors, but may help you develop a parenting plan. We advise our clients to go this route where appropriate, but mediation is not suitable for everyone. Interestingly, more men are satisfied with the result than women who tend to believe that they would have done better before a judge.
Memorandum of Law. A legal document filed along with pleadings or other court papers setting forth your lawyer’s legal research in support of a request to the court. Modification, Complaint for. The legal, post-divorce procedure to change or modify a separation agreement, or the court’s earlier decision and judgment.
Most states allow modification of prior agreements or decisions/judgments based on any unanticipated “material change of circumstance.” For example, your child requires extraordinary medical expenses or you become permanently disabled, and these events were unanticipated at the time of the original judgment. Certain types of agreements, “surviving agreements,” are written to bar any future modification. The rules are technical and vary among states. Public policy suggests that all child-related issues should be modifiable. Consult your lawyer.
Motion. A written request asking or “moving” the court to grant a temporary order, or rule on a legal matter.
Motions are either “contested” or, if the parties stipulate to the matter, “uncontested.” Motions are usually heard at a special motion or ex parte “session” of the court. Legal fees for contested motions are expensive and the outcome is rarely certain. Therefore, when possible, you should enter into a written stipulation to be submitted for the court’s approval. The stipulation then becomes part of the court’s temporary order.
Frequently, motions request temporary orders relating to support, maintenance of health and life insurance, and temporary custody of minor children. Other requests relate to matters such as motions to allow “amendment of pleadings,” “more time to answer a complaint,” and “continuances.” Requests for restraining orders and requests to vacate the marital home are also made by motion.
Motion for Attachment. See Attachment
Motion for Counsel Fees Pendente Lite. See Counsel Fees Pendente Lite, Motion for
Motion to Vacate the Marital Home. See Vacate the Marital Home, Motion to.
Necessaries. The common law doctrine that if a person who owes another person the duty of support and fails to support such person, he becomes liable to third parties who provide necessaries such as the grocer and utility company to person owed a duty of support..
The dollar amounts are limited and vary from state to state. The better practice is to get a temporary order of support.
Negotiated Settlement; Negotiated Agreement. The parties, usually with counsel, develop a separation agreement. These agreements are not mediated or arbitrated. In other words, the parties, without any neutral third-party, settle their controversy.
No-Fault Divorce. See Fault and No-Fault Divorce
Notice; Legal Notice. The procedure for informing a party that a legal action or motion is pending before a court.
Courts normally refuse to hear complaints or motions unless proper notice is given, but exceptions are often made for ex parte motions which do not require notice to the opposing party. The rules of civil procedure govern both the procedure for serving process and related time requirements. Initial complaints must be served by sheriff or constable (in-hand service), while motions can usually be served either in-hand or via US mail. Parties usually have 20 days to respond to the initial complaint and 10 days to prepare for motions unless a copy of the motion is served in-hand (rather than by US mail), then only 3 to 4 days notice are required. State laws vary, so check with counsel.
Nullity of Marriage. See Annulment
Nuptial. Of, or pertaining to, marriage
Order; Court Order; Order of the Court. A written instruction from the court carrying the weight of law, i.e., the knowing violation of which constitutes contempt of court.
Orders must be in writing. Many parties quote the courtroom statements of the judge. What the judge says “orally” may be interesting or even insightful, but it does not carry the force of law unless in writing. Before acting or failing to act in response to the judge’s oral comments, you must consult counsel.
Palimony. Payments similar to alimony made to a former co-habitator.
Parens patrieae. The right of the state to take charge of the care and custody of minor children or other legal incompetents when their health or safety so requires.
Parental Alienation Syndrome (PAS). The process of one parent doing
or saying things with the intent of alienating a child from the other parent.
Parental Kidnapping. The act of one parent illegally taking a child in violation of court order.
The federal Parental Kidnapping Prevention Act requires states to cooperate with each other in returning children kidnapped by a parent. The United States, along with approximately 35 other countries, are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. This treaty is similar to the federal law except it is limited to signatory countries.
Parenting Class. A new procedure, mandatory in some jurisdictions, designed to assist with co-parenting issues during divorce.
Parenting Coordinator. Usually court-appointed, a Parenting Coordinator
assists parties resolve their conflicts.
Pendente Lite. Latin for “during the litigation.” See Counsel Fees Pendente Lite, Motion for
Perjury. Perjury is knowingly lying under oath.
If a person believes he is telling the truth, but is factually incorrect, he’s neither a liar nor perjurer. If he knowingly and intentionally makes factually incorrect statements under oath, he is both a liar and perjurer. If the statement is not made under oath, he is merely a liar.
Clients often comment that opposing counsel is a “liar” or “perjurer.” If opposing counsel makes a factually incorrect statement, it doesn’t necessarily mean he is lying. Who knows what he believes, or what his client told him? Try to stay calm when this happens. See Courtroom Etiquette.
Perjury may run rampant in divorce trials. Criminal prosecution for perjury in a civil cases is virtually non-existent. One Massachusetts Family Court judge sent cases to the district attorney ( who failed to prosecute). No one likes being lied to, especially judges. The “jerk” factor often decides cases. Which party is the bigger jerk? Judges are human. They often like one side more than the other. Point out your spouse’s perjury at trial, and he’ll assume “jerk” status.
Personal Jurisdiction. See Jurisdiction
Petition. See Complaint and Joint Petition
Physical Custody. See Custody--Physical
Pleadings. Includes the complaint (or petition), answer, and counterclaim.
Attached to pleadings is a “certificate of service” or “proof of service” that certifies how, where, and when such pleading was served on the opposing party and whether the service was by constable, deputy sheriff, by mail, or by “legal notice” published in a newspaper.
Postnuptial Agreement. Same as prenuptial agreement, but entered during the term of the marriage, often revising a prenuptial agreement.
If a divorce is imminent, i.e., the parties enter into a Postnuptial agreement in anticipation of divorce, then the contract is called a Separation Agreement or Settlement Agreement. See Agreement; Separation Agreement; Property Settlement Agreement; Marital Agreement.
Prayer; Prayer for Relief. The request made to the court, usually at the end of a pleading, asking for the relief sought, such as granting a divorce or ordering financial support. For instance, you might say “the plaintiff respectfully requests this Honorable Court to....”
Prejudice; With and Without Prejudice. The concept that what happens in court or by stipulation of the parties will affect future proceedings. Generally, pretrial orders are said to be without prejudice, which means that the parties have a right to a trial on all matters, including those decided by temporary orders. In contrast, with prejudice means that even at trial the earlier order determines the outcome.
Preliminary Hearing. Any court proceeding that occurs prior to trial.
Premarital Assets. Assets acquired before marriage. These assets usually are part of the marital estate in equitable distribution states and are excluded from, and constitute separate property in, community property states.
Prenuptial Agreement. A written, premarital contract dealing with death and divorce which sets forth the rights and responsibilities of the parties upon occurrence of these events.
Such agreements must be “fair and reasonable” at the time entered, and “fair and reasonable” at the time of enforcement. The longer a marriage, the less enforceable they become. The parties financial statements should be attached since full disclosure is required.
Pretrial Conference. A meeting of all parties and counsel with the trial judge, sometimes held in the judge’s chambers.
Most states require these pretrial conferences. Counsel prepare a “pretrial memoranda” for the court, and the judge asks pointed questions. Most cases settle during this conference since the parties hear, for the first time, how a real-life judge would decide the case. A judge’s general impressions and settlement recommendations carry great weight, especially when the pretrial judge will also try the case.
Parties are often surprised by how close they are to settling. Often the only thing keeping them apart is their attorneys’ failure to communicate with their clients and with each other. Some lawyers never really understand their own cases until a judge, with 5-10 minutes of preparation, explains it to them. They are highly focused on a few trees when the forest is on fire.
Lawyers’ lack of communication and their zealous but unrealistic advocacy waste tens of millions of dollars annually.
Pretrial Discovery. See Discovery; Pretrial Discovery
Pretrial Memorandum. See Trial, Pretrial Memorandum
Pretrial Motion. See Motion
Pretrial Order. See Temporary Order; Temporary Restraining Order (TRO)
Primary Physical Custody. See Custody--Physical
Privilege. Refers to evidence based on private communications made within legally recognized “confidential relationships,” such as marriage, attorney-client, patient-psychiatrist, and priest-penitent. It also includes the privilege against “self incrimination” which can be asserted by a party accused of adultery where adultery is considered a crime.
Under the rules of evidence, matters are excluded, no matter how relevant to the case, if obtained through these confidential relationships. The rules are technical and vary state to state. Consult your lawyer.
Probate; Probate Court. Probate is the legal process of administering decedents’ estates.
In many states, family court is part of, or under the jurisdiction of, the probate court.
Production of Documents. See Discovery; Pretrial Discovery
Professional Responsibility (Code of). See Ethics, Legal Ethics and Cannons of (Legal) Ethics
Pro Se; Pro Se Appearance. When a party handles her own case, i.e., represents herself, she is said to appear “pro se.”
Parties are entitled to appear pro se, but counsel is recommended, especially if you have significant assets or serious child-related issues. Remember, even a lawyer who represents himself has a fool for a client.
Process. (noun). See Service; Service of Process
Procedure. See Rules of Procedure; Rules of Civil Procedure; Rules of Domestic Relations Procedure
Property Agreement. See Agreement
Proposed Findings; Proposed Orders. A document prepared by you or your lawyer and submitted to the court setting forth your best case scenario, i.e., how you want the judge to find the facts and make “conclusions of law” to decide the case.
Protective Order. See Restraining Order and Discovery Problems.
Quash. See Discovery Problems
QUDRO (Qualified Domestic Relations Order--pronounced “kwad-row”). A court order directed to a “plan administrator” or “custodian” allocating retirement benefits between spouses.
QUDROs often are used when one party, usually the husband, has a large pension or 401K and when liquid assets are insufficient to “even up,” i.e., pay cash to the party without or with smaller pension benefits. While judicial policy is to avoid long-term entanglements, sometimes there is no choice but to approve a QUDRO.
Recrimination. If the defendant is accused of adultery, “recrimination” is the counterclaim when the plaintiff is accused of adultery, too.
Recusal. The disqualification of a judge because of judicial prejudice or bias.
If you believe that a judge cannot give your case a fair hearing, counsel can file a motion asking the judge to “recuse” himself. Unless the judge has a personal or business relationship with your spouse, this motion will probably fail, and can even backfire. Judges do not want to be told that they cannot act fairly.
Rehabilitative Alimony. Short-term spousal support designed to help the recipient “get started” with her new life. See Alimony.
Removal (of a minor child). The legal proceeding, usually brought by complaint or petition, by the custodial parent to remove (move) the minor child(ren) from the state.
The recent trend is to allow the custodial parent more flexibility in moving out of state when there are “real advantages” (known as the “real advantage” test) to the custodial parent. The theory is what’s good for the parent (usually the mother) is good for the child, i.e., in the child’s best interest. Fathers’ rights groups have lobbied against this trend. Not all states use the “real advantage” test. We have come full circle from Victorian times when children were the personal property of their fathers. Now children are the personal property of their mothers. Many courts are unlikely to allow removal if the child has a close relationship with the non-custodial parent. Consult your attorney.
Request for Admissions. See Discovery; Pretrial Discovery
Request for Production of Documents. See Discovery; Pretrial Discovery
Restraining Order. A temporary court order prohibiting a party from certain activities. Issued in response to a motion, restraining orders often are issued to protect marital assets and to protect against domestic violence. In many states, violating a “domestic restraining order” is a criminal offense.
Retainer Agreement. See Fee Agreement
Rules; Rules of Civil Procedure; Rule of Domestic Relations Procedure. The statutory rules that govern court procedure. Courts must obey these rules.
In contrast to substantive matters covered by divorce statutes, court rules are limited to procedure. Such matters as “notice” requirements, service of process, time requirements for answers and counterclaims, and discovery are established by rules. Courts have some discretion to ignore some rules if their enforcement would cause injustice. See Equity; Court’s of Equity.
Rules of Evidence. The statutory rules governing testimony, documents, and demonstrative materials.
In divorce, the two most encountered rules relate to hearsay (“he said, she said),” and the marital privilege (“my husband told me...”). Clients are often frustrated when important evidence is barred from trial. Lawyers spend considerable time figuring out “how to get it in.” Try not to get too angry at the system, there is a valid reason for each rule.
Sanctions. Under the Rules of Procedure, courts may penalize or sanction a party or counsel for improper behavior, such as making frivolous claims.
Usually such awards are paid to the opposing party, but don’t hold your breath. Courts are reluctant to punish obstructionist lawyering or uncooperative parties. The divorce bar has created a lucrative cottage industry out of obstructing justice.
Secretion of Assets. The hiding of assets
Self Incrimination; the right against. The right of the accused not to admit criminal wrongdoing.
Most wrongful behavior is not criminal in divorce, so the right against self incrimination cannot be asserted. Certain acts, however, such as adultery, are still considered crimes in most states. Domestic violence and tax cheating are also crimes. The right may be asserted in these limited instances, but unlike criminal proceedings, the judge may draw a negative inference from a party asserting the right against self incrimination. In other words, the judge can assume your guilt from your assertion of the right. In criminal cases, drawing such inferences is strictly forbidden.
Separate Maintenance. See Legal Separation
Separate Property. Property is not considered part of the marital estate. Usually occurring in community property states, it includes property brought into the marriage and also may include inheritance or gifts received during the marriage.
Separate Support. See Legal Separation
Separation. See Legal Separation
Separation Agreement. See Agreement
Service; Service of Process. The legal process of informing, i.e., “giving notice,” that a complaint or motion is pending.
The process described is a noun meaning certain pleadings served or to be served. Process is served personally (“personal service”) either in-hand or accepted by an adult at the recipient’s residence or place of business. If the defendant cannot be located, service is by “publication” in the local newspaper where he last lived. Check with your attorney as rules vary from state to state.
Settlement; Settlement Agreement. See Agreement; Separation Agreement; Property Settlement Agreement; Marital Agreement
Shared Custody. See Custody
Sole Custody. See Custody
Special Master. A court-appointed individual, usually an attorney, who assists the court in moving a case forward.
Problems relating to pretrial discovery often are handled by a special master who schedules and coordinates discovery. Such procedure is necessary where one or both parties fail to comply with discovery requests, or when the parties can’t agree on appraisers a special master can make the selection. Note that the special master is not a judge -- his opinions carry weight, but not the final word.
Spousal Lien on Marital Property. See Attachment
Spousal Support. See Alimony
Stay; Stay of Proceedings. The stopping of a judicial proceeding. A “stay of execution” stops the enforcement of a court order.
Generally, stays are granted by appeals courts, but appeals are rare in divorce cases.
Stipulation; Stipulated Agreement. A written agreement intended to be entered as a court order upon motion of the parties.
Courts like and usually approve reasonable stipulations. They save judicial time. Parties can stipulate to almost anything related to the case. In fact, a separation agreement is nothing more than a comprehensive stipulation. If the parties agree on some matters, but disagree on others, they can stipulate to those issues and have the court decide outstanding issues.
Strike; Motion to Strike. Upon motion of a party, a court may remove certain pleadings and evidence from the docket upon finding such material totally irrelevant, scandalous, or without proper notice.
Subpoena; Subpoena Duces Tecum. A court order (or order of a notary public in some states) to attend a legal proceeding such as a trial or deposition. If documents also are requested, the subpoena is called a subpoena duces tecum, Latin for “bring with you.” See also Discovery; Pretrial Discovery.
Success Fee. Legal fees added to hourly billings if, in the lawyer’s opinion, he deserves a bonus based on his performance.
Obviously, outside the practice of law, you are unlikely to find an employee or consultant unilaterally deciding his own compensation. Even chairmen of large corporations don’t set their own compensation levels. Think of your local supermarket cashier: “Well, today the produce is exceptionally fresh and you didn’t have to wait, so that’s an extra $10.00.” If your lawyer wants a success fee, see if he’ll give you a “failure discount.” Ask whether he’ll agree to reduce his fee if in your sole opinion his performance was unsatisfactory.
While some highly-regarded lawyers charge success fees, we believe it raises ethical questions, especially since counsel knows you, your psyche, and your finances intimately! Your state’s Cannons of Ethics may address this issue.
Summary Judgment. A procedural rule that allows judges to enter judgments without trial, generally used when only questions of law, and not fact, are at issue.
Summons. The court’s official notice to the defendant that he must respond to the attached complaint or petition.
The complaint must be served with the summons for the defendant to know the particulars of the claim against him. A sheriff or other party authorized to serve process completes a “proof of service” or “return of service” that is filed with the court.
Supervision; Supervised Visitation. See Visitation
Surviving Agreement. See Agreement and Modification; Complaint for
Temporary Order, Temporary Restraining Order (TRO). A pretrial order, i.e., interlocutory order, compelling a party to do something, or prohibiting him from certain activities.
Upon motion, courts may issue temporary orders at any time from the initial filing of a case to time of trial. Temporary restraining orders (TROs) are issued to preserve marital assets, such as restricting borrowing and spending. They also are used to restrain parties, usually the husband, from returning to the marital home (see Vacate; Motion to Vacate the Marital Home) or harassing the spouse.
Temporary Support. An interlocutory order of support entered before trial, i.e., an order issued while a case is pending. See Temporary Order.
Tenancy by the Entirety. The manner in which jointly owned real estate is usually held by married couples. The surviving spouse, if the parties were married at time of death, becomes the sole owner automatically.
Testimony. Any statement made under oath.
Tort; Marital Tort; Domestic Tort. A tort is any wrongful act which creates legal liability against the defendant or “tortfeaser.”
Some states allow spouses to bring “tort” actions in addition to divorce actions. Tort claims include assault and battery, fraud, and intentional interference with a person’s job or business. Domestic tort claims are rare, as most divorce cases cover all matters related to the marriage.
Trial; Hearing on the Merits; Evidentiary Hearing. A formal proceeding before a judge who hears testimony under the rules of evidence and makes a final decision relating to the matters presented. All such decisions are with prejudice, since they are final adjudications of the matters presented.
In contrast, motions are less formal without adherence to the rules of evidence. They do not result in final adjudication, but only temporary orders. Therefore, they are often without prejudice.
Trial Memoranda; Pretrial Memoranda. A “sales” document filed with the court, setting forth each party’s theory of the case, what they want, and why they should get it.
Trustee Process. A court order to a third party, such as a banker, freezing an account or property.
In effect, the third party becomes your trustee. He is responsible to you and the court for the safekeeping of certain property, such as money or the contents of a safe deposit box. A “writ of trustee process” is issued by the court in response to a motion and an affidavit of “irreparable harm” filed in support of the motion.
Vacate the Marital Home, Motion to. A request to the court made by motion asking that one party, usually the husband, be forced to vacate the marital home.
Unless you are under the threat of violence, this is a radical request that sets the stage for a contentious divorce. While your spouse may well deserve shabby treatment, you deserve to get what’s yours with the least effort. Don’t complicate things unnecessarily.
Venue; Change of Venue. The location of the court, in contrast to jurisdiction, which determines whether a court has legal authority to hear a case. Venue is where a court, with proper jurisdiction, will hear the case. When a case is transferred to a new location within the same jurisdiction (county or state), the transfer is called a change of venue.
Usually, the county court in the county where the parties last lived together is the proper venue.
Visitation, Grandparent. Grandparents have visitation rights in all 50 states. These rights generally do not cover non-biological descendants, i.e., adopted grandchildren or biological grandchildren given up for adoption.
Visitation; Supervised Visitation. Pursuant to stipulation, agreement, or court order, visits of unemancipated children with their non-custodial parent. Visits are supervised by a responsible adult when the non-custodial parent is accused of child abuse or neglect.
Take out your calendar and think it through. The schedule should be flexible, but consistent enough so you can make plans.
Wage Assignment; Wage Attachment. See Garnishment
With and Without Prejudice. See Prejudice; With and Without Prejudice
White Marriage. A marriage without sex
Writ of Attachment. See Attachment; Motion for Attachment
Writ Ne Exeat (Arrest). An arrest warrant granted in emergencies
This is an extraordinary remedy used in extraordinary circumstances. For example, it is used to prevent the removal of assets or minor child. When such removal is imminent, the court orders the sheriff to arrest and bring the defendant to court.