The following is another glossary of divorce related terms, provided by Memphis divorce attorney, Miles Mason.
SOURCE: Crone & Mason
Affidavit. A written statement of facts made under oath and signed before a notary public.
Alternative dispute resolution. Mediation is a type of alternative dispute resolution, or “ADR,” outlined in Supreme Court of Tennessee Rule 31. Another common form of ADR is a judicial settlement conference, where the parties and lawyers meet with another judge and discuss the case, receiving an impartial opinion about the case.
Answer. Usually the second pleading in a divorce, separation, or annulment. An answer is filed in response to the Complaint and either admits or denies the Complaint’s allegations.
Automatic Injunction. An “Automatic Injunction” may be issued at the beginning of the case if one party pleads fault grounds for divorce and a certain document is filed with the Complaint or Counter-complaint. If your lawyer tells you the case has been filed and an automatic injunction was issued, in Tennessee this means a court has ordered that you and your spouse cannot do certain things. Make sure you understand those things you cannot do. Examples of things you cannot do include harass your spouse, give away money to your best friend, move with your children to another city, or remove your spouse from your health insurance coverage.
Business Valuation. If one party owns all or part of a business, division of this ownership interest will most likely require that it be valued prior to settlement or trial. Often, both parties will engage a business valuation expert to perform this service.
Complaint. The first pleading in an action for divorce, separate maintenance, or annulment, setting forth the allegations on which the requested relief is based. The complaint lists certain statistical information and grounds for divorce.
Confidentiality and the Attorney-Client Privilege. Beginning with the initial consultation, everything you say to your attorney is confidential, whether or not you hire the attorney. Neither the attorney nor staff persons can ever disclose what you say. Exceptions to the attorney-client privilege involve endangerment of a child or knowledge of crimes to be committed in the future.
Consent Order. An order agreed upon by opposing parties or attorneys. A consent order is also reduced to writing, signed by the judge, and filed with the court.
Contempt of Court. The willful and intentional failure to comply with a court order, judgment, injunction, or decree by a party to the action, which may be punishable in a variety of ways, and in some instances, incarceration.
Counter-complaint. In a divorce counter-complaint, the defendant sues the plaintiff for divorce. The defendant becomes a counter-plaintiff, and the plaintiff becomes a counter-defendant. If the defendant wants custody, alimony, property, or attorney’s fees at a trial, there must be a counter-complaint which asks the court for that relief.
Custody Evaluation. A psychologist will interview and assess all family members to determine the best interest of the children with regard to custody. The evaluation may either be court ordered and independent or one of the parties may hire a psychologist to perform the evaluation as part of the evidence to be provided at trial. A report will usually be issued detailing the findings, offer an expert opinion, or make recommendations.
Default or Default Judgment. An order or judgment granted by a court without hearing the other side because that side failed to submit papers within the time allowed or failed to appear at a hearing.
Deposition. A method of discovery comprised of a conference where the lawyer asks a party or a witness questions under oath. A court reporter records the answers and prepares a transcript. Hearing answers before trial allows lawyers to know more about the case. It also allows the lawyer an opportunity to eliminate asking certain questions, thereby shortening the trial. Both parties, their lawyers, and the court reporter are generally the only persons who attend depositions. Depositions are not unusual in divorces.
Discovery. At any time during the case, though usually at the beginning, a party may file pleadings asking for discovery to learn about certain facts. Interrogatories, Request for Production of Documents, Request for Admissions, and Depositions are all forms of discovery. Almost always, there should be discovery before trial. In most cases, it is best to review discovery before a settlement offer is proposed. Generally, a party must respond to filed discovery within thirty days.
Ex Parte. An application for relief made without the other party being present, usually because an emergency situation exists.
Final Decree of Divorce. The Final Decree of Divorce is the pleading that grants the divorce and ends the case if there is no appeal. It is signed by the judge and is a court order restoring the parties to a non-marital legal status. Most often, the Final Decree of Divorce incorporates the provisions of the marital dissolution agreement.
Grounds for Divorce. The legal reasons for the divorce. If there is not a settlement, one of the parties may be required to prove grounds for the divorce at trial for a divorce to be granted.
Guardian Ad Litem. There are several methods a court can use to obtain information about parents and their dispute over which parent should assume the role of primary residential parent. One of the most common methods is the appointment of a guardian ad litem (“GAL”). The GAL will often be a lawyer but can also be a mental health professional or a social worker. The GAL can conduct interviews with the children’s parents, teachers, neighbors, and daycare providers, as well as with other persons who are regularly around the children. Usually, a report is written that contains recommendations which will be given to the judge.
Injunction. At any time during a case, a party may ask for an order, usually temporary, preserving assets or protecting the party from physical harm.
Interrogatories. A method of discovery comprised of a series of written questions served on the opposing party to discover certain facts regarding the disputed issues in a matrimonial proceeding. The answer to interrogatories must be under oath and served within a prescribed time, generally thirty (30) days. In most divorces, both parties will issue at least one set of Interrogatories to the other.
Jurisdiction. The authority of the court to rule on issues relating to the parties, their children, or their property.
Legal separation. A court judgment or written agreement directing or authorizing spouses to live separate and apart. A decree of separation does not dissolve the marriage or allow the parties to remarry, but may resolve financial claims. A legal separation may be as complicated and expensive as a divorce.
Marital Dissolution Agreement. Called the “MDA,” it is the document that records the terms of the settlement and is signed by both parties. The MDA becomes an order of the court when it is incorporated by reference into the Final Decree of Divorce.
Marital property. Marital property is subject to division by the court in a divorce. Marital property includes accumulated income and property acquired by spouses or commingled separate assets during the marriage. Determining what is and what is not marital property can be very complex.
Mediation. A process by which a neutral third-party facilitates negotiations between the parties. The mediator has no decision-making authority. Mediation may be ordered by the court upon motion by either party or upon the court’s own decision. If the divorcing parties have children, mediation is required if the parties cannot settle the case.
Motion. A motion is a general term that describes a document that is filed and a procedure whereby the judge can rule on important questions during the case. For example, if discovery is overdue, a party will file a Motion to Compel Discovery. Generally, no witnesses will be heard. For almost all motions, clients will not attend motion hearings. If a client wants to attend, the client can. Almost all court proceedings are open to the public, which is true for Memphis as well.
Notice of hearing. A paper that is served on the opposing lawyer or spouse listing the date and place of a hearing and the motion or motions that will be heard by the court.
Order. The court’s ruling on a motion or petition requiring the parties to do certain things or setting forth their rights and responsibilities. An order is reduced to writing, signed by the judge, and filed with the court.
Other Complex Asset Valuations. Vested and non-vested stock options, intellectual property generating royalties or license fees, commercial real estate, and patents are examples of other complex assets which may require special attention and expertise for valuation and division.
Pendente Lite Support. “Pendente lite” is a Latin phrase meaning: pending the litigation. If either party needs child support, alimony, or attorney’s fees while the case is pending, a “Motion for Pendente Lite Support” is filed. The hearing is heard before a “divorce referee.” The divorce referee is a lawyer no longer practicing family law chosen to determine the support on a more expedited basis. The ruling of the divorce referee can be appealed to the judge.
Pension Valuation. A pension provides cash flow to the recipient upon retirement and either the pension or its value can be divided by the court as part of the divorce. A pension valuation depends on the amount of vested and unvested monthly benefits accrued, the age of the recipient, and length of time to eligibility for payout. Like most assets, pensions normally are required to be valued for settlement or trial purposes. Determining the net present value of pension or other complex retirement assets require expert analysis. The valuation expert will need to review the plan document and a current benefits statement. Often these documents require time to acquire. Beginning the process of obtaining these reference documents early in the process can save time and money in the long run.
Permanent Parenting Plan. A written plan for the parenting and best interests of the child, including the allocation of parenting responsibilities, establishment of a Residential Schedule, and details of child support. Courts issue the form that must be used.
Petition. A petition is a general term that describes a document that is filed and a procedure whereby the judge can rule on important questions during or after a case. For example, to change custody after a divorce, a parent will file a Petition to Change Custody. Witnesses can be heard. Clients will almost always attend petition hearings and often testify.
Pleading. Any formal written application to the court for relief or notice and the written response to it. Pleadings include petitions, answers, counter-claims, responses, and motions.
Primary Residential Parent. The parent with whom the child resides more than fifty percent (50%) of the time. Generally, the primary residential parent will receive child support.
Pro Se. A litigant who is not represented by a lawyer (also “pro per”).
Relief. Whatever a party to a divorce proceeding asks the court to do: dissolve the marriage, award support, enforce a prior court order or decree, divide property, enjoin certain behavior, dismiss the complaint of the other party, and so on.
Requests for Admission. A method of discovery comprised of a party listing facts in a pleading that the other party must admit or deny within thirty (30) days or the court may deem them admitted. Request for Admissions are less common than other forms of discovery in divorces.
Request for Production of Documents. A method of discovery comprised of a series of written requests served on the other party seeking the production of documents, such as financial records. Responses must be provided within a fixed time, generally thirty (30) days. In many divorces, both parties will issue at least one set of Requests to the other.
Residential Schedule. A portion of the parenting plan listing when a child is to be in a particular parent’s physical care. The residential schedule designates in which parent’s home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations and other special occasions.
Rules of Evidence. The rules that govern the presentation and admissibility of oral and documentary evidence at court hearings or depositions. Although certain evidence may be truthful, it may not be admissible in court.
Separate Property. Property that is not “marital property” but belongs only to one spouse. Examples of separate property include gifts to a spouse, inheritance, or property owned prior to marriage.
Service. Before a case is started, the defendant must be served with the papers which give the defendant notice that a lawsuit has been filed. The Sheriff or a private process server will perform this function. A party or lawyer cannot serve lawsuits.
Stipulation. An agreement between the parties or their counsel which is binding on the parties and is generally entered with and approved by a court.
Subpoena. A document served on a party or witness requiring appearance in court. Failure to comply with the subpoena could result in punishment by the court.
Subpoena Duces Tecum. A subpoena requesting documents. Often, appearance is not required if documents are produced.
Summons. A written notification that legal action has commenced, requiring a response within a specified time period.
Temporary Restraining Order. Also called “Protective Order.” An order of the court prohibiting a party from acting or not acting. Examples of prohibited acts include threatening, harassing, or beating the other spouse or the children, selling personal property, or withdrawing and spending money from accounts.
Transcript. A typewritten record of testimony taken by a court reporter during a deposition or court.