Divorce Dictionary
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. ADR:
See Alternative Dispute Resolution.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 within the Affidavit, otherwise 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 Settlement 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: - Asset and liability division
- Alimony, health, and life insurance
- Legal and physical custody, child support, visitation, medical insurance and expenses, and college.
Aid to Families with Dependent Children (AFDC):
Government aid program to impoverished families. Commonly known as Welfare. Replaced in 1996 by Temporary Assistance for Needy Families (TANF) Program, created by the Welfare Reform Law of 1996. TANF became effective July 1, 1997. See Temporary Assistance for Needy Families. See http://www.acf.dhhs.gov/index.htmlAlienation 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.
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. See Rehabilitative Alimony and Temporary Support. Alimony Pendente:
See Temporary Support Alimony Trust:
A trust fund established to pay alimony; rarely used; extremely expensive means of paying alimony involving complex gift and income tax analyses. Alternative Dispute Resolution:
An out-of-court settlement process; arbitration, mediation, negotiation or collaborative law. Not litigation. Some states mandate ADR for divorcing parties, although parties maintain the right to have a judge decide their case. If parties settle, they may present their written Marital Settlement Agreement to a judge who will rule on its fairness and grant a divorce. Only courts can divorce the parties. The parties may not agree to be divorced. Hence, settlement agreements may be called separation agreements or marital settlement agreements, never divorce agreements. See Agreement.Alternate Payee:
Party who will be paid pension benefits in the alternative, not the employee. See www.dol.gov/ebsa/faqs/faq_qdro.htmlAmerican Law Institute (ALI):
Established in 1923 to address the complexities and uncertainty of law around the United States; collaborates with the National Conference of Commissioners on Uniform State Law (NCCUSL); publishes Restatements of the Law and Model Codes, including Principles of the Law of Family Dissolution. 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. 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.
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 their appearance, they cannot withdraw their 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 their self, 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. Appraisal:
The systematic and comprehensive analysis of the value, price or worth of an asset by examining the characteristics of the particular asset in comparison with similar or comparable assets that have been sold on dates as close as possible to the date of the analysis. Approximation Rule:
Newer concept developed by the American Law Institute to help decide child custody cases by maintaining approximately the same parenting routines after divorce as the parties and child experienced before divorce. See American Law Institute. 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. Assignment:
The transfer or formal giving of right, title or interest in property to another person or entity, such as an assignment of a share of a pension to a spouse as an alternate payee. See Alternate Payee.Assisted Negotiation:
See Mediation.Assisted Reproductive Technology (ART):
Artificial means of removing eggs from a woman, fertilizing the egg in a laboratory and returning the fertilized egg to the woman’s body or a carrier. See http://www.cdc.gov/reproductivehealth/ARTAssociation of Family and Conciliation Courts (AFCC). An organization founded in the 1960’s for professionals concerned about the care and custody of children and the collaborative resolution of disputes. See http://www.afccnet.org.
Attachment:
See Attachment Theory.Attachment Disorder:
Condition that results from preventing, impairing or disrupting an infant or young child’s time with a primary caregiver on the theory that the child fails to form an attachment or bond with the caregiver, feels the world is unsafe, acts out, exhibits various symptoms, and later fails to develop any attachments or lasting relationships as an adolescent or adult. Also becomes more prone to serious psychological problems as an older child and adult. See Attachment Theory.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). Attachment Theory:
Concept developed in the late 1960’s by John Bowlby and Mary Ainsworth that led to the conclusion that infants and young children should never spend more than a few hours away from their primary caregiver or they might not develop the ability to form an appropriate attachment and trust in another person. See Attachment Disorder. Often cited in child custody cases in the latter part of the twentieth century to prevent infants from leaving the care of their mothers for more than a few hours, never for an overnight visit with the noncustodial father. Later research points to children’s ability to form attachments to more than one caregiver. 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. Automatic Restraining Order:
Refers to a court order freezing assets; goes into effect automatically upon certain events like the filing of a complaint for divorce. If a party violates an automatic restraining order by transferring assets without prior leave of court or permission of the other party, that party could be found in contempt of court, subject to incarceration and/or financial penalties, including payment of the winner’s legal fees. Compare Trustee Process and Attachment.BIP:
See Batterer Intervention Program.Battered Immigrant:
Abused spouses and minor children living in the United States with abusive citizens or lawful permanent residents. US abusers may refuse to file relative petitions on behalf of victimized spouses or minor children because victims are less likely to report abuse or leave, fearing deportation. See http://www.ojp.usdoj.gov/vawo/laws/insvawa.htm.Batterer:
Person who uses violence and/or threats of physical, sexual or emotional violence against a member of the same household or romantic partner in a dating relationship. Blames the victim, accepts no responsibility for own behavior. See Batterer Profile and Cycle of Violence.Batterer Intervention Program:
Program designed for people who use violence against a member of the same household or romantic partner in a dating relationship; usually for people arrested for domestic violence, including classes or group therapy, and possibly psychological evaluation, individual counseling, or case management. Eighty percent of batterers are referred by the criminal justice system. See http://www.ncjrs.org/pdffiles/168638.pdfBatterer Profile:
Controlling individual with poor impulse control who probably witnessed abuse or was abused as a child; suffers from low self-esteem, but can be extremely charming and seductive early in a relationship, and then for no apparent reason turns angrily and explosively on a member of the household or romantic partner in a dating relationship. Batterers are more likely than the general population to abuse drugs and alcohol; suffer from poor communication skills, frequently in denial, refuses to accept responsibility for own actions, and blames others. Emotionally dependent on partners and easily threatened by the possibility of their departure. Excessively jealous and possessive. Usually male, suffering from feelings of failure to live up to male paradigm.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. Biological Mother:
Female who provides genetic material for a child, not necessarily the gestational carrier. See Gestational Carrier.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 .
Bona Fides of Relationship:
Intent of parties at time of marriage to enter into a relationship for good faith reasons, not simply to obtain benefits for a non-citizen spouse of an American citizen. See also INS.Buccal Swab:
Used to collect DNA samples from subject’s inside cheek. Buccal, relating to the cheek. See http://www.dnadirecttest.com/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/her 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. Central Authority (CA):
See Hague Convention (Convention). Under the Convention each participating country must designate a CA to handle Hague Convention child abduction cases. The U.S. Central Authority is the Department of State’s Office of Children’s Issues. The National Center on Missing and Exploited Children (NCMEC) is responsible for incoming cases. The CA helps parents seeking the return of a child to obtain legal services; provides the local court with information on the Convention; gets periodic updates from the court; processes requests for background checks on the child from the child’s country of habitual residence (see Habitual Residence); obtains a written opinion on the wrongfulness of the alleged violation from the country of habitual residence; may ask a local social welfare agency to investigate child’s welfare.Certified Divorce Financial Analyst (CDFA)™:
A trained professional who has passed certain tests to become a financial analyst specializing in divorce issues. May also be a Certified Financial Planner (CFP)®.Certified Financial Planner (CFP)®:
Credentials awarded by Certified Financial Planner Board of Standards Inc. (CFP Board) to individuals who meet education, examination, experience and ethics requirements.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 Enforcement Unit:
State agencies established under federal Social Security Act under Title IV-D entitled “Child Support and Paternity Establishment”, known as IV-D agencies, to collect data, establish parentage, if necessary, and collect child support; initially for welfare recipients, later expanded to include non-welfare cases. IV-D agencies may collect alimony if child support is owed. 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 Resource Center.
Civil Union:
A legally recognized relationship between two women or two men, but not a marriage, established in Vermont and Connecticut, with the same benefits as marriage. Politically more acceptable than same sex marriage in 2005. The Union may be certified or performed by a member of the clergy or state official.Clear and Convincing Evidence:
See Burden of Proof. One standard of proof in a civil case, meaning the degree of difficulty facing a litigant in proving his or her case. A high standard, but not as high as the burden the prosecution must meet in a criminal case by proving guilt beyond a reasonable doubt. Compare Preponderance of the Evidence.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 litigation-free means of settling disputes. See Alternative Dispute Resolution. Both parties and their collaborative lawyers (mediators) agree in writing that they will not use court proceedings. If the parties fail to reach an agreement, collaborative lawyers (mediators) are dismissed. New counsel must be retained to litigate.Collaborative Practice:
See Collaborative Law. In addition to lawyers, mediators, mental health and financial professionals participate in the settlement process. 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 or Application for Fee Waiver and Order thereon. 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. Comparable Real Estate Sales:
Recent real property sales used by real estate appraisers to establish the value of the real estate in question (subject property). Sales are usually in the same area and are similar in age, function, size, condition and location. Any differences must be quantified by a dollar amount that is added or subtracted from the appraised value of the subject property. 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.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 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: - a physical place, e.g., courtroom, courthouse
- 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:
- Treat the judge respectfully. Never interrupt or be argumentative, always ask permission to speak. 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.
- 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.
- 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 your spouse or his lawyer.
- 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:
Grounds for divorce in a fault divorce, wherein the plaintiff must prove physical or emotional harm to her or himself. 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 Evaluation:
See also Psychological Evaluation and Psychological Testing. Usually conducted by a mental health professional, sometimes called a Guardian ad Litem or court investigator. May include interviews, psychological testing, and home visits. Reports sometimes include non-bonding recommendations to the court, and are submitted to the court, attorneys and in pro per Petitioner/Respondent for the parties.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.
Cycle of Violence:
Phases of an abusive relationship where the batterer or violent party’s behavior commences with a seemingly non-violent romantic nature that becomes irrationally jealous and possessive over time, causing victim to go to great lengths to placate the batterer who inevitably becomes physically, sexually and/or verbally violent and explosive, followed by abject and apologetic behavior, but without acknowledgment or acceptance of blame or responsibility for own conduct. Batterer blames others and the victim. The cycle continues throughout the relationship, usually with increasingly shorter periods between violent outbursts. See Stalking.Dating Violence:
Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined by the following factors: 1) length of the relationship; 2) type of relationship; and 3) frequency of interaction between the persons involved. See http://www.usdoj.gov/ovw/
Daubert Test:
Reference to William Daubert v. Dow Pharmaceuticals, Inc., decided by the U.S. Supreme Court in 1993. Relative to Rules of Evidence. Leading case describing judge’s task in deciding whether to admit so-called expert opinion into evidence based on scientific validity and applicability to the case; whether the science has been tested and subject to peer review and publication; and what the rate of error is. Important standard when dealing with psychological testimony and evaluations in child custody or divorce cases. Later cases, Joiner (data must be reasonably relied upon by experts, 1997) and Kumho (expands Daubert Test beyond scientific expertise to all technical and specialized knowledge, 1999), also decided by the U.S. Supreme Court, refines the Daubert test. Compare Frye Test. See Rules of Evidence.
Death:
Event causing the legal dissolution of the marriage when a spouse dies. Compare Divorce and Annulment.
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.
De Facto Parent:
A person who has been found by the court to fulfill the role of parent, providing the child’s physical and psychological needs, for a substantial period of time.
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.
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 two fold: 1) fact-finding and 2) using any contradictory information among statements to impeach your spouse at 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.
Dissipation of Assets:
Wasting of assets that might otherwise be available for distribution upon divorce. Gambling, extravagant spending, or excessive borrowing and use of credit cards are examples of dissipation.
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. This can vary from State to State, check your State's proceedure.
Divorcement; Bill of Divorcement:
Same as divorce and divorce decree.
Docket:
See Court Docket.
DOMA:
Defense of Marriage Act of 1996. Federal law that provides for the nonrecognition of same sex marriage.
Domestic Relations Order. Compare Qualified Domestic Relations Order:
A court order used to allocate interests between divorced spouses in nonqualified pensions, usually state and municipal pensions, as compared to private retirement accounts like 401(k)’s. The term "qualified" means the retirement account is covered by or qualified under ERISA – a federal law dealing with employee benefits. See ERISA. http://www.dol.gov/ebsa/about
Domestic Tort:
See Tort; Marital Tort; Domestic Tort
Domestic Violence Hotline, National:
Created and funded under the Violence against Women Act of 1994 and reauthorized and funded under the Violence against Women Act of 2000.
See http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:h3402enr.txt.pdf
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.
Domicile, Compare Residence:
A party has one domicile, but may have several residences. Key term for deciding where divorce should be filed or which state’s law applies to a case. See also UIFSA, UCCJEA and Hague Convention.
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. - Length of the marriage
- Age, health, occupation of the parties
- Station in life and life-style
- Liabilities and needs
- Contribution to the marital estate (economic, domestic, child-rearing, etc.) 6. Assets and liabilities, sources and amount of income
- Behavior of the parties during the marriage
- 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. ERISA:
Employment Retirement Income Security Act. A federal law governing employee benefits in private industry. www.dol.gov/ebsa/compliance_assistance.htmlEstate:
Assets and property interests owned by a party, often referred to in divorce cases as "the marital estate", meaning assets subject to division between husband and wife. May exclude assets owned before marriage; assets covered by a prenuptial agreement; or assets acquired by gift or inheritance. Check state 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. Extraordinary Expenses:
Not the usual or ordinary costs or expenses, sometimes defined in marital settlement agreements as any expense in excess of a certain dollar amount, e.g. any single expense or series of expenses in excess of $500, usually requiring the prior permission of both parties before an extraordinary expense is incurred for which both parties are liable. Compare Ordinary Expenses. 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. Fair Market Value:
The price a willing buyer pays a willing seller; not a fire sale price or a sale between family members for less than full price. A price paid after an arm’s length negotiation, not a transaction between parties paying more or less than what a reasonable buyer would pay. Compare Replacement Value.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 often bring that party to a reasonable agreement. 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. But remember, conducting a moral campaign to prove fault may backfire. It's a high price for self-exoneration.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. California is a No-Fault State.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. Again, California is a No-Fault state.
Federal Court:
Courts established by the Congress of United States. Federal courts do not usually deal with family law cases, but may decide where a custody case should be tried (see Hague Convention) and other ancillary issues such as discharging a debt owed to a former spouse in bankruptcy or deductibility of alimony. See State Court.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. 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. 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. 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. Fraudulent Conveyance:
A debtor’s transfer of an asset out of the debtor’s name in an attempt to keep it beyond the reach of a creditor. The conveyance is fraudulent if it occurs within a certain time frame before commencement of a lawsuit or bankruptcy and if the debtor did not receive a fair price for the asset in question. If a court deems the transfer fraudulent, the transfer can be undone. Freeze Assets:
See Automatic Restraining Order.Frye Test:
Frye v. United States, decided in 1923. Relative to the Rules of Evidence, a test applied by a judge to determine whether so-called scientific evidence should be admitted because the science is “generally accepted” in the scientific community. An earlier test. Compare Daubert Test. 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. 
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