Adultery. This is one of the original grounds for divorce. In many states previously if you could not prove adultery, then you were unable to obtain a divorce. The determination that a spouse was guilty of adultery, which is sexual intercourse of any form with a person other than your spouse when married, this often results in a division of property other than a 50/50 split for the spouse that was cheating. Today adultery is used less in determining fault.
Alimony. Also called maintenance and spousal support in many states this is typically a periodic payment made to one spouse from the other. The purpose of alimony is to allow a spouse to gain employment, or an education that will allow them to gain employment. Often alimony is also used to help keep the economic situation of the spouse with lower resources closer to the pre-divorce level. Some alimony has a specific time period to end, while other alimony is in effect indefinitely. Typically, the spouse paying alimony is able to enjoy a tax deduction for the amount paid, while the receiver must claim the amount received as taxable income.
Alternative Dispute Resolution. This includes mediation as well as collaborative law and negotiations that are settled out of court. Some states require an alternative dispute resolution method be tried before a court will hear that case, however not all courts require this. Agreements that are reached are then given to the judge after both parties sign the agreement and the judge will decide upon the terms agreed upon to ensure that both parties are treated fairly.
Annulment. An order from a court stating that a previous marriage never legally existed. Typically, there must be some sort of legal reasoning for an annulment, such as one party was already married, or one party was underage and proper consent was not obtain for example.
Answer to Complaint and Counterclaim. This is the response that the defendant files answering all of the claims and allegations against them that the plaintiff has stated when the complain for divorce was filed. If the defendant has their own ideas about the reasons for divorce they are able to file a counterclaim, this would require the plaintiff to file a response to the counterclaim.
Appearance. This is a paper that must be filed with the courts that registers the name of your lawyer and their contact information. Additionally, if you represent yourself you file yourself as the attorney of record. Once this is done, any paperwork that must be delivered to your side is served to your attorney of record. Once an attorney is on file, they may not withdraw without your permission or the permission of the courts.
Arrearages. This is the difference between the amount ordered to be paid, and the actual amount paid. If the full amount is not paid, it results in an arrearage that must be paid at some point. However, if the arrearage is perceived because of payments that have been reduced that are not ordered by the courts, then it is not an arrearage.
Automatic Restraining Order. A restraining order that goes into effect when a divorce case is filed. However, other circumstances also exist. When an automatic restraining order goes into effect, neither party may transfer or dispose of any marital property without a court order, or the written permission of their other spouse. If a spouse transfers assets without the proper permission, they could be punished with financial penalties, or even potential jail time.
Best interest of the child. This is a legal standard as well as a doctorine that is used to help determine what the best interest of the child is when there is a disagreement between the parents.
Biological Mother. This is the female who provides genetic material for the child in question. Because of surrogate mothers, this is not always the mother who carries the child during pregnancy.
Child Support. Payments ordered by the courts to ensure that the non-custodial parent pays money to the custodial parent for the maintenance of the children of the marriage. Can also be used when a marriage did not occur, however must have a court order to obtain.
Cohabitation. The practice of two people living together that are not married. Typically, this can become a major problem in a divorce case if the parties have children and one party does not agree, or if a spouse, receiving alimony decides to cohabitate in order to avoid marriage and terminating the alimony they are receiving.
Collaborative Law. The process of settling a divorce without ever seeking the help of the courts, both spouses agree to work with a lawyer to fully agree upon all of the issues involved in their divorce. If however, the collaborative law process fails, both lawyers are dismissed and new lawyers are retained for the divorce trial.
Community Property. Method of deciding how property will be divided. There are nine community property states in the United States- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and lastly Wisconsin. The property that is acquired in these states in the course of a marriage is considered the joint property of both parties. However some exceptions do occur, most notably when an inheritance or gift is given from a family member. Exact state rules vary by location.
Complaint for Divorce. This is an official document filed with the courts that requests a divorce. It lists both parties involved, as well as the grounds and the exact claims that the plaintiff is making against the defendant. In addition, requests for custody and property are also included. In order to start the divorce process it is required that a complaint for divorce be filed.
Custodial Parent. This is the parent with whom the children of the marriage typically reside for the majority of the time. Even if the parents have joint custody, one parent is designated as the custodial parent for legal purposes.
Divorce Decree. Also called a Judgement of Divorce or even a Decree of Dissolution this is the document that is the courts final ruling or judgment that gives the exact terms of the divorce including property division, custody, support, child support, name changes and any other issues raised during the divorce.
Emancipation. The process of a child becoming a legal adult. This is typically used for child support purposes. Many states have changed emancipation to 23 years old instead of 18 to allow for children to attend college.
Ex Parte. This can be either a motion or an order that allows one party to seek the courts help and protection against their other spouse without the presence of their spouse. It allows for one party to have a hearing without being forced to take the time to properly serve the other spouse. This is typically only an option on emergency bases or if you are seeking an attachment. The reason for ex parte is because the side requesting an ex parte hearing feels that it would be dangerous to their safety, or the marital property if the other spouse had warning.
Grounds for Divorce. There are several grounds, which vary from state to state with each having their own requirements to prove the grounds that are being alleged. Adultery, cruel and abusive treatment, abandonment or desertion, long-term incarceration, impotency, and no fault. To determine the proper grounds for your area you must check with a lawyer to see your exact options.
Habitual Residence. Phrase used in connection with the Hauge Convention that refers to the home where a child lived last prior to an abduction. However, this does not speculate how long, or even with whom the child was residing.
Head of Household. A filing status that the IRS allows certain people to claim. However, in order to claim head of household status you must meet certain guidelines. These guidelines are the same regardless of the state of residency and include being unmarried on the last day of the tax year which is December 31st. In addition, you must have paid more than half of the expenses involved in keeping up a home during that tax year. You must also have a person who qualifies you to claim head of household such as a child, or other dependant.
Imputed Income. This is income that is figured in for a spouse that has no income, or if they are determined to be underemployed. This is typically used when determining alimony or more commonly child support. The courts will impute an amount for income based off what the spouse is capable of earning due to their training, education, and previous job experience. This can be applied for one spouse, or even both depending on the circumstances.
Irretrievable Breakdown. A legal grounds used to obtain a divorce using no fault grounds. Using this method the court must be sure that the marriage is broken and there is no hope of the parties reconciling.
Joint Petition. A petition that is filed when both parties request the court to grant a divorce. Often when a joint petition is filed, it is filed along with a separation agreement.
Legal Separation. This is only available in some states and provides a means for the spouses to be legally separated while remaining married. Typically, there will be some orders for custody, visitation, and even child support placed into effect while the separation is in effect. Some states require a separation for a certain period of time before considering a divorce.
Lump Sum. This is also referred to as a lump sum settlement in some areas. This typically is a payment made that would pay off all payments for alimony or other payments. However, payments are not made in full when handled in this manner and typically; a discount is associated since the payment is made all at once, rather than smaller payments over time.
Maintenance. See alimony for description.
Marital Assets. Property including bank accounts and real physical property that the parties own and have purchased during the marriage, acquired during the marriage, or been given during the marriage that does not qualify as separate or individual property.
Marriage Certificate. This is an official certificate, which is issued by your local government. This must be signed and properly filled out in accordance with your local marriage laws.
Mediation. The process of both parties voluntarily discussing various aspects of the divorce that they disagree upon. Typically, the mediation process involves the use of a certified mediator who is trained in the proper techniques of successful mediation. Because the process is, voluntarily either party can back out and the mediation will be stopped. Many times couples are able to reach agreements by mediation without someone else deciding upon their affairs for them. This is very commonly used in custody disputes, however is not used for child support.
Ordinary Expenses. This are the typical costs associated with living. They include things such as food, shelter, clothing, utilities, and such. However, for those families with larger budgets, it may include some luxury items that is normally included in the family budget before divorce.
Palimony. Payments that are made to someone whom you had agreed to marry and had supported. This is very hard to prove and be successful in receiving unless you have the right circumstances.
Parens patrieae. This is the right of the states to take over control of custody and the care of minor children or anyone else who is legally unable to make their own decisions if there is a good reason based on physical or mental danger.
Parenting Classes. These classes are often required for parents to attend when they have children of the marriage. They are intended for parents to learn how to work together without causing further hardship to the children, however are not as effective as many states would like since it involves parents putting aside their differences for the children.
Parental Kidnapping. One parent taking a child without the authorization of the other parent or the courts by a court order.
Parenting Schedule. This is the schedule that sets forth which parent has custody, as well as when the other parent is allowed time with the child. Also included tends to be issues pertaining to extra-curricular activities, and special occasions and holidays.
Paternity. This is the biological relationship between a male and a child. However, on occasions paternity can be associated with a male who is not biologically related but has legal paternity of a child.
Paternity, Establishment. Determination of paternity that can be done by either a court order or by a voluntary acknowledgement that a father has signed.
Personal Property. This includes things such as bonds, cash, checking accounts, savings accounts, stocks, intellectual property, and even collectibles and pets. Not included in this is land, houses, or other real estate property.
Physical Custody. This is the determination of who has custody of the children physically. This is different from legal custody. This refers to where the children primarily reside.
Premarital Assets. These are all of the assets that are acquired before marriage. Whether they are physical or personal property these assets are separate property. Depending upon your state where you live depends upon how the assets will be divided in the event of a divorce. Some states consider it separate property for a divorce while other states will still divide the property.
Primary Physical Custody. See the description for physical custody.
Pro Se. This is when a client, either a plaintiff or a defendant chooses to represent themselves in court in a legal action without the use of a lawyer. If your case is very complicated it is much more advisable to retain a lawyer for your case if you can financially afford it.
Real Property. Property that is things such as buildings, land, and other real estate.
Recrimination. Term used to describe when the plaintiff in a divorce action is also accused of adultery in the counterclaim filed in court.
Rehabilitative Alimony. Alimony or spousal support paid to help the spouse receiving the payments gain an education or a source of employment. This is typically for a very short period of time, often only a few years before alimony is terminated.
Removal. Typically refers to a parent removing the primary residence of the child. This almost always requires the approval of the courts regardless of which parent is requesting to move so that visitation issues can be resolved as well as the custodial parent prove why it is in the child’s best interest for the move to take place.
Residency Requirement. This is the amount of time, which varies from state to state that you must live in a state before you are able to file for a divorce there. Most states say somewhere between 6 months and 12 months is the minimum.
Separate Property. This is the property that is not part of the marital property in states that are community property states. It often includes assets owned before the marriage as well as certain property acquired during the marriage.
Shared Custody. This is typically an arrangement where the parents share custody of the children. Both physical and legal custody is included in this classification. Typically, physical custody is primarily given to one parent regardless of how much time the non-custodial parent has with the child. Legal custody is the easiest form of custody to share.
Single Parent Families. This usually refers to families where only one parent is involved, due to a divorce, death, or other reason. Most single parent families are headed by a female since most minor children are with their mothers following a divorce. However, recent trends show more fathers heading single parent families now.
Spousal Support. See Alimony, also called maintenance.
Summons. The official notice to a party in a lawsuit that they must respond formally to a complaint or the petition that was filed in courts. A proper service process must be done in order for the summons to be binding. A summons must be attached to the complaint for divorce when it is served.
Temporary Support. This is support, whether spousal or child support that is ordered to be paid while the case is pending. Often the orders are entered early in the divorce process to ensure that children are taken care of while the divorce proceeds for years in some cases.
Tender Years Presumption. This is an old concept that many courts used that stated that mothers were the better parent for custody when a child was young. Most commonly from the age of 10 or younger. However, many states are dropping this method of belief when deciding custody now.
Vacate the Marital Home, Motion. This is typically used to force one spouse to leave the family home. While it is possible to request this, it is not usually granted unless there is a true fear of violence of some form. Because of the hostility that this can cause, it is not recommended to file this motion unless you are sure you will win, and you feel that you have no other options because many spouses react very badly to this motion.
Vacating Order. This is an order from the courts that is designed to vacate or remove an order previously in effect. Often associated with restraining orders and other similar types of orders.
Visitation, Supervised. This type of visitation occurs typically when someone is attempting to rekindle a relationship with a child, or if there is a fear of physical danger. The visits are typically supervised by someone that the court appoints to ensure there is proper supervision.
Visitation Center. A place where children and parents can visit where they are supervised by trained personnel. Typically, a fee is due for each visit that is almost always required to be paid by the non-custodial parent. However, depending upon your exact custody arrangement the custodial parent may be required to pay the fee for the center.
Voluntary Acknowledgement. This is a document that is a written declaration that a man is the biological father of a child. This is done voluntarily and without a court order, or a DNA test.