Divorce Law Glossary

Authored by Wendy Witt, Esq.

If you're like most folks considering separation or going through a divorce, some of these divorce keyword terms will be familiar and some will be new to you.

Because it's incredibly important for you to understand your legal rights so you can make good decisions, we've created this "divorce keyword glossary".

If you have questions about how any of these terms apply to your individual situation, jot down your thoughts and be sure to consult with a qualified divorce attorney, licensed in your state.

For you convenience, you can find a divorce lawyer through www.attorneys.org - a free, private, and no obligation site. Or, of course, you can ask a loved one for a personal referral or call the bar association for list of divorce attorneys.

Admission - Stipulation

Both spouses agree on certain facts during divorce proceedings.

For example, the petitioner spouse states that she and her spouse have two children together. The respondent spouse agrees, admitting his paternity of the two children.

There is no issue, no disagreement, and the fact that the couple has two children need not be proven. The non-disputed facts are admitted or stipulated to.

Affidavit - Sworn Statement

If you sign an affidavit or give an affidavit, you have sworn that you are telling the absolute truth. An affidavit is notarized, which means your signature has been verified.

Allegation

An allegation is something that either you (or your spouse) intend to prove in your divorce case.

For example, if you say you don't have to pay alimony because your spouse committed adultery, you have made the allegation that your spouse committed adultery in your petition for divorce.

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) usually refers to arbitration or mediation, which are 2 ways to reach a marital settlement agreement without going to court.

ADR is usually faster and less expensive than going to court - and you and your spouse come up with your own agreement, instead of having it mandated by the court.

Appeal

Sometimes judges and courts make mistakes.
  • If you can show that the court made a mistake that detrimentally affected the outcome of your case, you may be able to appeal your case to a higher court.
  • A serious mistake that affected your case is called a "reversible error".
  • An example would be the judge gave the jury inappropriate jury instructions or the judge failed to let relevant information into evidence.
The appeals court can:
  • Decide your case by finding that the lower court was wrong and order them to try again - the appeals court can "reverse and remand".
  • Find that the lower court was right - the appeals court "affirms" the trial court's decision.
  • Decide the case itself by reversing lower court's decision. The decision of the trial court can be "reversed" if there is no issue of fact and only issues of law.
  • Somewhat confusingly, the appeals court can "reversed in part, remanded in part, and affirmed in part" - all at the same time.

Cause of Action - Action - Lawsuit

Cause of action and lawsuit mean the same thing. It is unfortunate, but if you file for divorce, you're actually "suing" for divorce.

  • Some states still use the traditional terms, "plaintiff, for the spouse filing for divorce and "defendant" for non-filing spouse.
  • Other states have recognized that such terms are outdated and acrimonious and have replaced "plaintiff" and "defendant" with "petitioner" and "respondent", respectively.

Certification - Affidavit

Both terms, "certification" and "affidavit", refer to a sworn and notarized statement.

When you certify or sign an affidavit, you are swearing that your statement is absolutely true to the best of your knowledge.

Change in Venue

If it is more convenient (or beneficial) for you to appear in a different court, you may request a "change in venue" so your case is transferred to another court.

Complaint/Petition for Divorce

A "complaint" (also called “petition”) is a court filing asking for divorce and the details why the divorce should be granted.

In divorce, this initial filing details the requested action (e.g. divorce) and the reasons why the divorce should be granted.

  • Most divorces are no-fault and, therefore cite that the marriage is irretrievably broken or that the couple has irreconcilable differences.
  • Sometimes, citing fault such as drug addiction, abuse, impotence, or adultery is important for maximizing financial benefits.

Whether or not it's in your best interests to file for a no-fault or fault divorce depends on your goals, state law, and your individual situation. This is absolutely not a decision to make alone. Be sure to consult with a qualified divorce attorney, licensed in your state.

Contempt of Court

What the court says, goes. If you do not do what the court tells you to do, you will be held in contempt of court  - and you can be sent to jail.

If you have a problem with a court order, ask your divorce attorney whether you have any viable options - do not disregard a court order without first seeking legal counsel.

Counterclaim

If you file for a claim/petition for divorce, you are the "plaintiff" or "petitioner" and your spouse is the "defendant" or "respondent". The specific terms depend on your state law.

  • If your spouse then files a claim/petition against you, it is called a "counterclaim" and you become the "defendant" or "respondent".
  • Your spouse is the "plaintiff" or "petitioner" for purposes of the counterclaim.

Court Hearing - Hearing

A court hearing is like a mini-trial because there can be witnesses, other evidence, and arguments. The judge must make a binding decision and issue a court order at the conclusion of the hearing.

Court Order

When a court says that something must be done, it is called a "court order". The order is always written and signed by the judge.

For example, the court may order "$2,000" in temporary spousal support per month until the divorce is finalized.

Cross-Examination and Direct Examination

If you do choose to go to court instead of working out a marital settlement agreement with your spouse, you'll likely have to take the witness stand.

  • When your own attorney asks you questions, this is "direct examination".
  • If your spouse's attorney asks you questions, it is called "cross-examination".

Defendant - Respondent

The "plaintiff" aka "petitioner" is the spouse who filed the initial divorce papers. The "defendant" aka "respondent" is simply the other spouse.

  • The terms are identifying labels only; they do not mean that one spouse is good and the other is "bad" or that one spouse is right and the other spouse is wrong.
  • Unlike criminal law, being referred to as a "defendant" doesn't mean you're being accused of doing anything wrong.

Some states have recognized the negative connotation associated with the terms "plaintiff" and "defendant" and have eliminated those terms substituting "petitioner" and "respondent", respectively.

Dissolution of Marriage

"Dissolution" means "end" - the marriage ends in or is dissolved by divorce.

Emancipation

In most situations, children are emancipated from their parents when they attain the age of 18.

  • This means that legally they are adults and their parents are no longer required or entitled to make health care, educational, lifestyle, and general welfare decisions on their behalf.
  • In some extreme cases, when parents and child have become estranged, a child may ask the court to be emancipated before age 18 so he can make his own decisions.

Emancipation is akin to a divorce between parent and child.

Estate Planning

Estate planning is a legal process, documented in writing, which authorizes trusted helpers to act on your behalf when you are not able to and provides instruction as to the distribution of your assets after your death.

It is essential that you update your estate plan on a regular basis, especially when life changes significantly such as during divorce.

You absolutely need to consider:
  • Changing the beneficiaries of your life insurance, retirement plan, and annuities - as well as your will and trust.
  • Naming guardians for your minor children in your will.
  • Updating your trusted helpers in your health care power of attorney, financial powers of attorney, trust, and will.

You are welcome to use www.attorneys.org to find a qualified estate planning attorney, licensed in your state. All estate planning lawyers listed will provide a free case evaluation so you'll know whether you need to update your estate plan - or not.

In the alternative, the local bar association will likely have a list of estate planning attorneys or you can ask a loved one for a referral.

However you find a good attorney, be sure to update your estate plan during or after your divorce - you'd be surprised to know how many ex-spouses are still listed as the beneficiary of retirement plans and life insurance policies.

Evidence

The court (or jury) can only use information submitted into evidence to make a decision.

  • If the evidence is testimonial, a witness must take the stand and provide evidence through answering questions.
  • However, prior testimony or depositions can be used as evidence if the witness is not available or to impeach a witness who may not be telling the truth.
  • Physical evidence or non-testimonial evidence is submitted into evidence as an "exhibit".

Any information submitted as evidence must follow the Rules of Evidence relevancy tests.

Exhibit

Non-testimonial evidence entered at trial is called an "exhibit".

For example, a loan application may be used to show a spouse's assets.

Ex-Parte

If you want the court to take some action without your spouse being involved, you ask the court to proceed ex-parte (without the other party).

Grounds for Divorce

Most divorces proceed on "no-fault" grounds, meaning that neither spouse is legally at fault for the divorce. (Remember there is a difference between the legal and the emotional components of divorce.) In the case of the "no-fault" divorce, the divorce papers state that the marriage is "irretrievably broken" or the spouses have "irreconcilable differences." If you wish to work out a marital agreement with your spouse, you'll likely need to proceed on no-fault grounds.

Sometimes circumstances are dire and additional monies can be had in a divorce wherein one of the spouse's is to blame. Fault grounds depend on state law; but in general, they are mental cruelty, physical cruelty, desertion, adultery, and infection of a spouse with venereal disease, impotency, attempted murder, use of addictive drugs, habitual drunkenness, and insanity.

Guardian

It is essential that you and your spouse name guardians for your children in your wills. If you do not and something happens to both of you, the court - not you - will decide who raises your minor children.

  • You can name either the same or different people to take physical care of your child and to manage the assets you leave for your children.
    • The guardian of the person takes physical care of the child on a day-to-day basis.
    • The guardian of the estate manages the assets and makes distributions to benefit the child.
  • Be sure to name contingent guardians in case your primary guardian is unable or unwilling to serve when the time comes.
  • A "guardian ad litem" is a professional, typically a lawyer, who is appointed by the court to represent a child in court.

Mediation

Mediation is a form of alternative dispute resolution, meaning it helps you and your spouse settle your problems without going to court. The benefits are great, including more control over your future, finances, and children - as well as - faster resolution and less expensive price tag - and, perhaps, a more amicable relationship with your spouse.

During mediation, neutral professionally trained mediator guides both spouses to an agreement for some or all of the following: spousal support, property division, child support, and time sharing (custody).

No-Fault Divorce

In many states, you don't have to prove that your spouse did anything wrong in order to obtain a divorce. You just have to say that you have irreconcilable differences or that your marriage is irretrievably broken.

In many cases, there is no good reason to state grounds for divorce - it would likely just serve to antagonize. However, in some cases, grounds are required by state law or change the financial distribution between spouses.

Be sure to consult with a qualified divorce attorney licensed in your state for guidance in your individual case.

Order - Court Order

When the judge makes a decision, she will reduce the order to writing and sign it. This is a court order.

Petitioner - Plaintiff

The spouse who files the initial divorce papers with the court is called the "petitioner" or "plaintiff", depending on state law.

The spouse who isn't the initially filing spouse is called the "respondent" or "defendant", depending on state law.

Just because someone is referred to as a "defendant" doesn't mean he or she did anything wrong; it simply means the state legal system still uses archaic terminology.

Relief

When you ask the court to do something for you, you are asking for "relief".

For example, during a divorce, you may as for temporary spousal support or child support.

Reply - Answer

A reply or an answer is a response to a court filing.

For example, if your spouse files a motion to continue (reschedule) court proceedings, you need to file a reply - either agreeing to the continuance or opposing it and explaining why it should not be granted.

Respondent - Defendant

In divorce cases, either the term, "respondent", or the term, "defendant" is used to refer to the spouse who did NOT file the initial divorce papers.

  • The spouse who did file for the divorce is called the "petitioner" or the "plaintiff".
  • If your state uses the archaic term "defendant", this does NOT mean that you or your spouse did anything wrong. It's just a term used to refer to the responding, not the initiating, spouse.

Restraining Order - TRO - Permanent Restraining Order

During separations and divorce, courts can grant both temporary and permanent restraining orders, which command one spouse to stay away from and have no contact with the other spouse because of a history of or the threat of abuse.

Restraining orders can be either temporary (TRO) or permanent. For example, the restraining order may be valid for 90 days or a lifetime.

Subpoena

A "subpoena" is a legal demand for you either to appear before the court or hand over requested records.

If you ignore a subpoena, the judge can issue a warrant for your arrest.

Summons

If you receive a summons, it can be a scary thing. After all, a summons notifies you that some legal action has been taken against you - and that you MUST respond within a set time period.

Absolutely never - ever ignore a summons. Legal action will not go away just because you don't want to deal with it and if you fail to take action, the court is likely to find against you and issue a default judgment.

If you receive a summons, it's likely in your best interests to consult with an attorney immediately.

Testimony - Witness Testimony

"Testimony" refers to statements made by a witness in court - or in a deposition. Witness testimony is "sworn", meaning that it is made under oath.

Witness

You likely already are familiar with the term, "witness" - and it actually has a couple of meanings.

  • If someone witnesses something, she can testify in court as to what she experienced. This firsthand testimony is evidence. For example, a witness may testify that you are a good parent, citing examples.
  • However, an expert witness doesn't need firsthand knowledge. An expert can provide evidence after analyzing evidence. For example, a business valuation expert may testify that the family business is worth $100,000.
  • In addition, witnesses may sign a legal document acknowledging that they saw you sign your name. For example, it's prudent - even if not required by your state law - to have two witnesses and a notary acknowledge your signature on your will.

Where to Find a Divorce Attorney

Only a licensed divorce attorney can give you legal advice and explain how these divorce keywords apply to your individual family situation.

Fortunately, you can find a divorce lawyer by asking a friend for a referral or calling the local bar association and asking for a list of divorce attorneys. All the divorce lawyers on www.attorneys.org will offer you a no obligation - and private - case evaluation.

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