More commonly used terms in divorce and family law cases and their definitions.
(see "Spousal Support")
Itemized below are those deductions lawfully allowed against gross income:
State and federal income taxes that bear an accurate relationship to the tax status of the parties
Contributions to social security (FICA)
Mandatory union dues
Health insurance premiums
Child or spousal support actually being paid
Job related expenses deemed necessary
See community property and separate property.
ASSIGNMENT OF WAGES (Mandatory Wage Assignments)
Any order for child support payments must include an order for the assignment of wages, unless it is agreed in writing that no wage assignment will be filed with an employer if the spouse is not in arrears by more than a specified time or is current on his/her payments.
AUTOMATIC RESTRAINING ORDER
When the divorce petition is served, both spouses are ordered by the court to not remove any children from the state, not to sell any property or borrow against property, or borrow or sell insurance held for the other spouse. These orders remain in effect until the Judgment is signed by the court.
Both parents must decide on custody of minor children under the age of 18. Physical custody relates to living with and supervising the children. Legal custody relates to the responsibility of making decisions relating to health, education, welfare and other significant decisions affecting the children. Both physical and legal custody can be sole or joint. See Child Custody for more information.
Child support is payment made to the parent with physical custody of the minor children to support the child. Child support is mandatory in all actions involving minor children. Under most state laws, a standard uniform guideline is used to determine child support payment amounts. It is based on the incomes of both parents and the amount of time each parent spends with the children. For more information, see Child Support.
Like community property, all debts contracted during the term of the marriage are community debts, and thus, both husband and wife are equally liable for these debts. In most cases, this includes any unpaid balances on credit cards, home mortgages, and automobile loan balances.
Community property is everything that a husband and wife OWN TOGETHER. In most cases, community property is all property acquired during the marriage and is deemed to be owned equally by wife and husband. It includes money and wages earned during marriage, and anything purchased with that money.
A court hearing is not required in every case if the petitioner take the required steps necessary to complete an action by mail.
Debt means any money owed to another person or company.
Both spouses must provide the other with all information related to their property, income, assets, and debts. This is called Full Disclosure. Failure to fully disclose all relevant information or concealing information can lead to serious problems, so be very precise in listing all assets, debts, income, and property. There are two disclosure forms which will be generated:
Preliminary Declaration of Disclosure – Within 60 days of filing the petition, the petitioner must serve the other spouse with this form. It preliminarily lists all your debts, assets, income, and property.
Final Declaration of Disclosure – Both parties must serve this form on the other party prior to signing an marital settlement agreement. If any changes have occurred from the Preliminary Declaration of Disclosure, they should be made on this form. Furthermore, the Final Declaration can be waived by both parties if a marital settlement agreement is signed.
Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, worker’s compensation benefits, unemployment insurance benefits, disability benefits and spousal support received from a person not a party to the action are all considered part of gross income. Gross income also includes gross receipts from a business, less business expenditures and employer benefits. Gross income does not include child support payments actually received, or any public assistance based on need.
Irreconcilable difference simply means that the parties have marital difficulties which cannot be reconciled, and have led to the permanent breakdown of the marriage. This is all that is required to get a divorce in most states – no other information regarding why you wish to get a divorce is required.
The judgment is the most important document of your divorce. It is the final resolution of all your legal issues. Every portion of your judgment becomes final when it is signed by the court, including the marital settlement agreement if it is attached.
MARITAL SETTLEMENT AGREEEMENT
A marital settlement agreement is an agreement by both spouses which sets forth the plan for the division of property, child custody, spousal support and all other material terms of the divorce.
Net income is gross income minus allowable deductions.
See Retirement Benefits.
The parenting plan is part of the marital settlement agreement. The parenting plan can be modified at anytime. One spouse must go to court and show why the change would be in the best interest of the children.
Any piece of property that is moveable, as opposed to land or attached to land. For instance, cars, jewelry, furniture, are all fit into the category of personal property. Personal property can be divided into community and separate property.
The Petition is the first document filed in court and starts the clock running on any required waiting periods. The petition includes all the important information regarding the marriage. It contains facts regarding the names of the husband and wife, names of any children, whether there is any separate property or community property, child custody, child support, spousal support and other information.
The person who first brings the action is the Petitioner, or the person who is "petitioning" the court to get a divorce.
Real property means "land" and anything attached to the land, such as a building, home, or even trees. It includes anything underneath the land as well, such as minerals or water. Real property can be divided into community and separate property.
In order to bring an action for divorce in most states, the spouse filing for the divorce must have lived in the state for a minimum time before filing the action. This minimum time is different for each state.
It does not matter where you were married, so long as state requirements are satisfied. Furthermore, being away on a business trip, vacation, or simply temporarily away does not stop your residency.
After filing the petition, there is no longer a residency requirement, and you or your spouse may move anywhere (unless you have children, in which case, you are not permitted to move them without prior written permission of the other spouse or court order).
The spouse who is not the Petitioner, is the Respondent. The Respondent is the person who "responds" to the action brought by the Petitioner.
A Response may be filed by the respondent to agree with or dispute the facts set forth on the petition.
All debts incurred before marriage are separate debts and are the obligation of only one spouse. Thus, for example, educational loans or job training loans incurred before marriage are separate debts.
Most states do not have a requirement for physical separation in order to get a divorce. The date of "separation" is the date when both husband and wife finally decide that the marriage is over, with no intention to stay together as husband and wife.
Separate property is everything that a husband and wife OWN SEPARATELY. In most cases, it is: (1) anything you or your spouse owned prior to marriage, (2) anything you or your spouse inherited or received as a gift, and (3) anything you or your spouse earned after your separation. It can also include anything that one of the spouse’s gives up to the other spouse in writing.
Spousal support (also known as "Alimony") is money paid by one spouse to the other to maintain his or her customary standard of living.
The summons is a message the court provides to the other spouse which states that a Petition for divorce has been filed. It further states that if there is no response within 30 days, the court may grant what the Petitioner has requested.
An uncontested divorce is one in which both parties agree to the divorce and the terms of the settlement, without going to trial. This does not mean that there were no arguments or disputes between the spouses – it simply means that the spouses were able to reach an agreement without going to court and having the judge rule one way or the other.
The fair market value of each item. When filling in values, fill in the cash value the property would receive if sold to someone else. In determining the amount, you should consider similar property someone else has sold.