Glossary of Divorce Terms

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Now, here for the Divorce and Family Law Terms

Abandonment: Abandonment occurs when a spouse leaves the marital residence and does not return after a year has elapsed.

Acknowledgment: A notary public has to acknowledge certain legal documents like prenups. This means that the notary is attesting that the person was physically present and he or she observed this person’s signature and thus can vouch for the authenticity of the signature.

Adultery: Adultery is what happens when you engage is sex or sexual relations or sex acts with someone who is not your spouse even though you have a spouse who is alive and kicking.

Affidavit of Service: An affidavit of service is a legal document that is filled out and signed by someone over the age of 18 who has given your spouse the summons for divorce or a verified complaint of divorce. This document is very important and must be submitted to the court.

Agreement: An agreement is a contract or accord between two or more people. It can be written or oral depending on the circumstances.

Alternative Dispute Resolution:  This is an alternative to courtroom litigation. These techniques and mechanisms include negotiation, mediation, good offices, conciliation and arbitration. They are not binding in the same way as a judgment, except for arbitration. But sometimes arbitration is also nonbinding.

Alimony: This is an amount of money that is paid by one spouse to another after a divorce. It can be for a fixed period of time or it could be for a life term. Alimony is taxable to the recipient and deductible by the payee, as compared to property settlement which is neither taxable nor deductible.

Ancillary relief: is when you ask the court for extra things other than just a divorce judgment. That includes alimony, child support and asset distribution.

Annulment: An annulment is really a divorce but it goes further by saying the marriage never even happened (which obviously is not true) but the principle is that it never happened from a legal standpoint.

Answer: You answer a complaint and summons for divorce by having your lawyer prepare your “response” to the allegations in the papers you were served. This has to be signed by you.

Attorneys Fees: A non-deductible (for tax purposes) amount paid to an attorney in a divorce or legal action. 

Bifurcation: Splitting up the issues in a divorce action into two parts. For example the grounds trial vs the asset distribution. One can be completed while the other part takes months or years to be sorted out.

Best Interest of the Child: A global standard used to determine the care and control of minor children in a divorce or family law proceeding and context.

Bailiff

Child Support: Child support is the responsibility of parents and guardians of minor children. Both parents are responsible for paying for the child’s financial needs.

Child Support Standards Act (CSSA): In New York and presumably in other states, there is an actual legislation that details how child support will be handled. This is the law that basically details how the child support obligation will be handled.

Child Tax Credit: This is a special tax credit awarded to a custodian of a “qualifying child” for tax purposes. Check the (IRS website)

Cohabitation: This occurs when two or more people live together without the benefit of marriage.

Collaborative Divorce Law: Process in which couple hire specially-trained lawyers and other professionals who work to help them resolve their conflict out of court.

Commingle: This is usually a bad idea when the time comes for divorce. It is when spouses put separate property and marital property (this could include cash and other investments) together in one account.

Complaint: The complaint is the “divorce papers.” This is “served” on your spouse in a divorce action, along with the summons.

Community Property state: A state like California where marital property is considered to belong to both spouses equally irrespective of which spouse earned or procured the property; so long as it was acquired or accrued during the marriage there will likely be a 50/50 split in divorce property distribution.

Constructive Abandonment: This occurs when one spouse refuses sex for a year or more in a marriage, even though there is no physical reason that he or she cannot have sexual relations.

Contested Divorce: This occurs when one party in the divorce does not want the divorce or does not agree to the terms of the divorce.

Cruel and Inhuman Treatment: In New York and certain other states this is a “grounds” for divorce. It occurs when there is physical, verbal and psychological abuse in a marriage that basically breaks the marriage bond.

Custody of a child: Custody of a child means having the legally sanctioned right to make decisions on behalf of minor children. There is legal and physical custody.

Custodial Parent: This is the parent with whom the child resides or who has decision making authority for the care and welfare of the child as well as the child’s legal and physical needs.

Default Judgment of Divorce: If your spouse does not answer or respond to the summons and/or complaint within the time the law allows, you can obtain a divorce by default. But you must prove that your gave your spouse notice either with an affidavit of service or a notice of publication.

Defendant: The person who is asked for a divorce and thus receives the divorce papers.

Deposition: In a divorce action you often have to give a deposition and this is basically that you “testify” but out of court. This information can then be used in court and it is under oath.

Discontinuance: This happens when the parties change their mind about the divorce and decide to reconcile. Before they can assume they are still married they have to file a notice of discontinuance with the court.

Dissipation: This happens when a divorce is imminent or has been filed and one spouse purports to ruin, extinguish or diminish marital assets insofar as this prevents the other spouse to be able to partake of the marital asset.

Divorce: This occurs after a court has adjudicated a maarriage as legally caput.

Divorce Decree: This is the pronouncement by the court of your divorce which is basically a written instrument signed by the judge

Equitable Distribution: This is the “fair” way to distribute marital assets based on who contributed what. It hardly ever will mean a 50/50 split.

Ex Parte Communication with the court: This is any communication with the court that involved only one party in the divorce action. Usually this is a no no.

Expert Witness: This is a paid specialist in a particular field who through their experience and schooling are able to provide an informed opinion on an issue in a divorce.

Family Court: In New York the family court hears cases involving families and children but not divorces which are handled on the Supreme Court level.

Guardian ad litem: This is a legal professional or attorney who in theory is the guardian for the minor children in the divorce action. The Guardien ad litem tells the court what is probably in the child’s best interest. The court makes the final determination based on the guardian’s opinion and other factors.

In Camera Inspection: This is a private examination by the court that happens behind closed doors and in front of a camera. But not in the courtroom where everyone can hear.

Index Number: This is the number that identifies your divorce action in the court’s database. No two cases have the same index number.

Innocent Spouse: A spouse who is relieved of tax liability due to his or her “innocence” when his or her spouse files fraudulent or erroneous tax returns

Interrogatory: A set of interrogatories or questions is sent by both sides in a divorce to get specific details or information about specific issues in a divorce action.

Irretrievable Breakdown: This is where the couple can no longer stand each other and so after about six months if they do not see a way to reconcile their differences, they can file for divorce.

Judgment of Divorce: This is the final paper you receive from the court saying you are divorced.

Jurisdiction:  The jurisdiction refers to the court’s power and authority to hear and decide on a particular case. There are many factors that gives a court ‘jurisdiction”in a divorce action including where the parties reside and where they were married, etc.

Law Guardian: The law guardian is the child’s lawyer who I appointed by the court just like the guardian ad litem is appointed by the court.

Maintenance: This is the cash and property that is provided to the less affluent spouse during a divorce action. Maintenance can be permanent but usually it is just for a specified period of time.

Marital Property: Any and all assets earned during a marriage is marital property unless the parties have a prenuptial agreement that says otherwise.

Mediation:  Under the collaborative divorce paradigm, mediation is the ADR mechanism that allows parties to submit to a third party’s guidance as they sort out their divorce action mutually and without the need for court intervention.

Notice of Entry: This is the last step in a divorce action. It happens after the judgment has been sign and when the divorce has officially been entered into the court’s records at the office of the country clerk. If there is no notice of entry, the it could complicate the status of your remarriage.

Note of Issue: This is filed when the parties are proceeding with a divorce trial. It lets the court know that all sides are ready to do battle in the courtroom.

Order of Protection: This is usually needed in situations where there is violence or hostility between divorcing couples. One spouse can ask the court to bar the other spouse from the marital residence, for example. Children can also receive an order of protection from a parent.

Party: The parties in a divorce action are the two spouses.

Personal Residence: The main place where you live.

Plaintiff: The plaintiff is the person who starts the divorce action.

Removal of Barriers to Remarriage Form: This  usually refers to Jewish people who need the Get I order to be legally divorced. It is required “when the marriage was solemnized in a religious ceremony by a member of the clergy, minister of any religion, or a leader of The Society for Ethical Culture. It requires the party obtaining the divorce to acknowledge that he or she has taken all steps to remove religious barriers to the other party’s remarriage.”*

Request for Judicial Intervention: The RJI is filed when the parties are ready to begin the divorce court action and thus need a judge to be assigned to their case.

Separate Property: This is property that is not part of the marital estate.

Separation: This is the precursor to divorce; parties are free to reside in separate residences or even if in the same residence they have no obligation to copulate with each other.

Separation Agreement: This is a formal agreement governing how the parties will conduct themselves during a period of separation. It is not a divorce but could be the precursor to an actual divorce. It must be signed and acknowledged in order to be enforceable in court if there is a dispute.

Service: To serve someone in a divorce action means to ascertain that the divorce papers are delivered by an appropriate third party to the person.

Settlement Agreement: This is the formal document that parties sign, ending the marriage. It likewise should be signed and acknowledged.

Statute of Limitations: The statute of limitations is the amount of time a party has to appeal or to start a particular lawsuit. After that date, the action will be time barred for laches.

Subpoena: A subpoena is an order of the court compelling someone to either appear in court or to produce certain documents for the court action.

Uncontested Divorce: An uncontested divorce is a divorce where the parties agree on ALL the terms.

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