Abandonment.

See Desertion

Abduction (of Child). See Parental Kidnapping

Abuse. See Cruel and Abusive Treatment

Abuse Prevention. See Restraining Order

Action; Actionable. See Cause of Action

Admissible; Admissibility. Any testimony, document, or demonstrative material

that is officially considered by the court, i.e., allowed into evidence, generally in
compliance with the rules of evidence.

Adultery. Sexual intercourse between a married person and a third party.

Courts once used adultery, once the sole ground for divorce in some
jurisdictions, to punish the guilty. Today courts are more interested in the
economic impact of adultery, if any, on the marital estate. How much
money was spent on the mistress' Think of judges as accountants who want
full disclosure and financial accounting for improperly spent funds.

ADR. See Alternative Dispute Resolution.

Affidavit. A written statement, voluntarily signed under oath, usually in support of

a motion.

Be careful that you have personal knowledge of all matters asserted, or else
it 'can and will be used against you in a court of law.' If there is any doubt
whatsoever, but you still believe something is true, say 'Based on
information and belief....'

Agreement; Separation Agreement; Property Settlement Agreement; Marital

Agreement. A legally enforceable, spousal contract settling all matters.

Generally not referred to as a 'divorce agreement' since only the court can
grant a divorce. If the parties fail to reach an agreement, the case goes to
trial, and the court's decision and judgment is substituted. Court's judgments
are modifiable based on a 'material change in circumstances.' An agreement
may be either modifiable or unmodifiable ('surviving'). Typically, these
agreements settle issues relating to:

1. Asset and liability division

 2. Alimony, health, and life insurance

3. Legal and physical custody, child support, visitation, medical

insurance and expenses, and college.

Aid to Families with Dependent Children (AFDC). Government aid program to

impoverished families. Commonly known as Welfare. Replaced in 1996 by
Temporary Assistance for Needy Families (TANF) Program, created by the
Welfare Reform Law of 1996. TANF became effective July 1, 1997. See
Temporary Assistance for Needy Families. See www.acf.dhhs.gov/programs/afdc/

Alienation of Affection. Any intentional, malicious interference with a marital

relationship.

Historically, the aggrieved spouse could bring an action against the third
party wrongdoer, without filing for divorce. These suits are now rare,
however, and are prohibited in some states. Today courts will entertain fault
divorces making the co-respondent a defendant in the action, but such
defendants are generally not liable financially for their adultery.

Alimony. Court-ordered spousal support, usually periodic payments, but

sometimes paid in a lump sum as part of a marital agreement (alimony 'buyout').

More modern terms include 'maintenance' and 'spousal support.' Payments

are tax deductible to the payor and includable in the payee's taxable
income. Similarly situated parties are treated dissimilarly when the only
difference is gender. Most courts are sympathetic to women, especially in
long-term marriages or when the husband has a high income or greater
resources. In their zeal to protect women, some courts favor wives despite
their economic equality.

See Rehabilitative Alimony and Temporary Support.

Alimony Pendente. See Temporary Support

Alimony Trust. A trust fund established to pay alimony; rarely used; extremely
expensive means of paying alimony involving complex gift and income tax
analyses.

Alternative Dispute Resolution. an out-of-court settlement process; arbitration,

mediation, negotiation or collaborative law. Not litigation. Some states mandate
ADR for divorcing parties, although parties maintain the right to have a judge
decide their case. If parties settle, they may present their written settlement
agreement to a judge who rules on its fairness and grants a divorce. Only courts
can divorce the parties. The parties may not agree to be divorced. Hence,
settlement agreements may be called separation agreements or marital settlement
agreements, never divorce agreements. See Agreement.

Alternate Payee. Party who will be paid pension benefits in the alternative, not
the employee. See www.dol.gov/ebsa/faqs/faq_qdro.html

American Law Institute (ALI). Established in 1923 to address the complexities

and uncertainty of law around the United States; collaborates with the National
Conference of Commissioners on Uniform State Law (NCCUSL); publishes
Restatements of the Law and Model Codes, including Principles of the Law of
Family Dissolution.

Analysis and Recommendations. See http://www.ali.org

Annulment. The court's judgment that a so-called 'marriage' was never legally
valid or became invalid after the marriage.

Where a marriage was never legally consummated, for instance if one party
was already married, the marriage is said to be 'void,' or a 'nullity,' i.e., it
never existed. In contrast, a 'voidable' marriage is valid unless, or until,
annulled. Grounds for annulling a 'voidable' marriage include serious fraud
or a party's legal incompetence at the time of marriage. Most annulments
are obtained for religious reasons through a religious tribunal.

Answer to Complaint (Petition) and Counterclaim. A responsive pleading that

answers allegations made in the complaint. A counterclaim sets forth the
defendant's allegations against the plaintiff, as if the defendant were asking for a
divorce in the first instance. The defendant is sometimes called the 'plaintiff-in-
counterclaim' since he makes his initial claim in this pleading.

Defendants must file an answer and counterclaim within a certain time of

being served with process, usually 20 days. The plaintiff, in turn, must file
an 'answer to counterclaim.'

Antenuptial Agreement. See Prenuptial Agreement

Appeal. Review of a trial court's decision and judgment by a higher court. The
appeals court can review the trial court's 'finding of fact' and 'conclusions of law.'
See Decision and Judgment.
 Appeals courts analyze the trial court's decision and judgment for
substantive errors in its 'conclusions of the law.' In exceptional cases the
trial court's 'finding of facts' are also reviewed. Most findings of facts are
extremely difficult to challenge because appeals courts defer to the trial
court's ability to weigh evidence. Unless the trial court's findings of fact
cannot possibly be supported by the evidence, such appeals will fail. Judges
have discretion to believe or disbelieve all evidence presented, and appeals
courts will not second guess the trial court on its finding of facts.

While challenging a trial court's 'conclusions of law' is less difficult, states

grant divorce judges substantial discretion in fashioning judgments.
Therefore, appeals are often unsuccessful except for substantial errors of
law that significantly and adversely impact a party; otherwise, the mistake
is considered 'harmless error.' Whether your appeal succeeds may depend
more on your gender than the merits of your case. In Massachusetts, for
instance, over 80% of appeals brought by husbands were dismissed whereas
over 80% of appeals brought by wives prevailed.

Appear; Appearance; File an Appearance. A court filing registering the name

of your lawyer, or, if you represent yourself, your name as 'pro se.'

Your lawyer must file an appearance with the court. All pleadings and
notices are then sent to her address which constitutes proper service on you.
If you appear without counsel, you are said to appear pro se.

Once counsel files her appearance, she cannot withdraw her appearance
without your permission or leave of court, usually by motion. Sometimes
courts will not allow counsel to withdraw unless a new lawyer ('successor
counsel'), or the party herself, files an appearance. If no successor
appearance is filed, courts frequently deny this request, even if the client
fails to pay attorney's fees. Counsel then becomes your involuntary servant,
but don't expect zealous advocacy from a slave. You may get what you pay
for. Obviously, divorce lawyers view this problem as justification for large
retainers.

Appraisal. The systematic and comprehensive analysis of the value, price or

worth of an asset by examining the characteristics of the particular asset in
comparison with similar or comparable assets that have been sold on dates as close
as possible to the date of the analysis. See http://www.asc.gov/

Approximation Rule. Newer concept developed by the American Law Institute to

help decide child custody cases by maintaining approximately the same parenting
routines after divorce as the parties and child experienced before divorce. See
American Law Institute.

Arbitration. A legally binding, non-judicial procedure held before a neutral third

party, the 'arbitrator,' who acts as private judge.

Unlike mediation, neither party can unilaterally terminate the process, and
both parties are bound by the arbitrator's decision, as if a judge acted in her
official capacity. In some states, judges refer certain cases or aspects of
cases for arbitration.

Arrearages. The deficiency between the amount, if any, paid and the amount
required under court order. If payments are made voluntarily on a de facto basis,
i.e., not under court order, any reduction in the amount of such payments is not
considered an arrearage.

Assignment. The transfer or formal giving of right, title or interest in property to

another person or entity, such as an assignment of a share of a pension to a spouse
as an alternate payee. See Alternate Payee.

Assisted Negotiation. See Mediation.

Assisted Reproductive Technology (ART). Artificial means of removing eggs

from a woman, fertilizing the egg in a laboratory and returning the fertilized egg to
the woman’s body or a carrier. See http://www.cdc.gov/reproductivehealth/ART

Association of Family and Conciliation Courts (AFCC). An organization

founded in the 1960’s for professionals concerned about the care and custody of
children and the collaborative resolution of disputes. See http://www.afccnet.org.

Attachment. See Attachment Theory.

Attachment Disorder. Condition that results from preventing, impairing or

disrupting an infant or young child’s time with a primary caregiver on the theory
that the child fails to form an attachment or bond with the caregiver, feels the
world is unsafe, acts out, exhibits various symptoms, and later fails to develop any
attachments or lasting relationships as an adolescent or adult. Also becomes more
prone to serious psychological problems as an older child and adult. See
Attachment Theory.

Attachment; Motion for Attachment. A lien on personal or real property created

by court order (known as a writ of attachment) in response to a motion for
attachment.
 Attachments are issued by courts to preserve marital assets. An important
adjunct to restraining orders, they are used if there is substantial risk that a
restraining order would be violated. For instance, if the marital home is in
the husband's name, and he decides to sell the house despite a restraining
order, the attachment puts the world on notice that any purchaser would be
subject to the wife's rights. Obviously, no buyer would buy nor lender lend
under these circumstances. Most orders of attachment are issued ex parte
(see below).

Attachment Theory. Concept developed in the late 1960’s by John Bowlby and
Mary Ainsworth that led to the conclusion that infants and young children should
never spend more than a few hours away from their primary caregiver or they
might not develop the ability to form an appropriate attachment and trust in
another person. See Attachment Disorder. Often cited in child custody cases in the
latter part of the twentieth century to prevent infants from leaving the care of their
mothers for more than a few hours, never for an overnight visit with the
noncustodial father. Later research points to children’s ability to form attachments
to more than one caregiver.

Attorney for the Child(ren). A court-appointed attorney who represents the

stated wishes of the child(ren). Unlike a guardian ad litem who acts in the child's
best interest by substituting her own judgment for the child's, the attorney for the
child(ren) must promote those causes espoused by the child(ren) and generally not
substitute her own judgment.

The lawyer's role is not clearly defined when representing very young
children. In these cases, lawyers must substitute their own judgment on
obvious matters such as protecting a child's bank account from an
untrustworthy parent. Bankrupt; Bankruptcy. The inability of a person to
pay his bills as they become due. Also, a person's legal status in federal
bankruptcy court. Alimony and child support are generally not affected, but
property divisions, including the marital home, are unprotected from third
party creditors.

If concerned about your spouse filing for bankruptcy, consider an

attachment on his portion of the marital assets, thus achieving 'secured
creditor' preferred status in bankruptcy court.

Automatic Restraining Order. Refers to a court order freezing assets; goes into
effect automatically upon certain events like the filing of a complaint for divorce.
If a party violates an automatic restraining order by transferring assets without
prior leave of court or permission of the other party, that party could be found in
contempt of court, subject to incarceration and/or financial penalties, including
payment of the winner’s legal fees. Compare Trustee Process and Attachment.

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BIP. See Batterer Intervention Program.

Battered Immigrant. Abused spouses and minor children living in the United
States with abusive citizens or lawful permanent residents. US abusers may refuse
to file relative petitions on behalf of victimized spouses or minor children because
victims are less likely to report abuse or leave, fearing deportation. See
http://www.ojp.usdoj.gov/vawo/laws/insvawa.htm.

Batterer. Person who uses violence and/or threats of physical, sexual or emotional
violence against a member of the same household or romantic partner in a dating
relationship. Blames the victim, accepts no responsibility for own behavior. See
Batterer Profile and Cycle of Violence.

Batterer Intervention Program. Program designed for people who use violence
against a member of the same household or romantic partner in a dating
relationship; usually for people arrested for domestic violence, including classes or
group therapy, and possibly psychological evaluation, individual counseling, or
case management. Eighty percent of batterers are referred by the criminal justice
system. See http://www.ncjrs.org/pdffiles/168638.pdf

Batterer Profile. Controlling individual with poor impulse control who probably
witnessed abuse or was abused as a child; suffers from low self-esteem, but can be
extremely charming and seductive early in a relationship, and then for no apparent
reason turns angrily and explosively on a member of the household or romantic
partner in a dating relationship. Batterers are more likely than the general
population to abuse drugs and alcohol; suffer from poor communication skills,
frequently in denial, refuses to accept responsibility for own actions, and blames
others. Emotionally dependent on partners and easily threatened by the possibility
of their departure. Excessively jealous and possessive. Usually male, suffering
from feelings of failure to live up to male paradigm.

Best interest of the child. The legal standard or doctrine for making child-related
decisions.

Bifurcation; Bifurcated Trial. In some states, the grounds for divorce, and all
property rights/support obligations, are tried separately.
Binomial or Lattice Model. Developed in 1979 by Cox, Ross and Rubinstein.
Used to value or price options. Considered more flexible than Black-Scholes
Method because more variables are considered, including vesting periods, changes
in price, interest and dividends, forfeiture and early exercise. See Valuation.
Compare Black-Scholes Model.

Biological Mother. Female who provides genetic material for a child, not
necessarily the gestational carrier. See Gestational Carrier.

Black-Scholes Model. Developed in 1973 by mathematicians Fisher Black and

Myron Scholes to determine the value or pricing of a stock option. It utilizes the
stock price, strike (exercise) price, expiration date, risk-free return, and the
standard deviation (volatility) of the stock's return. See Valuation. Compare
Binomial or Lattice Model.

Bomber. A old term to describe an unethical divorce lawyer who sleeps with his
clients.

If your lawyer tries this on you, politely tell him 'no,' then immediately
report him to the state bar. Sleeping with a divorce client is a serious ethics
violation -- besides, lovers make bad lawyers.

Bona Fides of Relationship. Intent of parties at time of marriage to enter into a

relationship for good faith reasons, not simply to obtain benefits for a non-citizen
spouse of an American citizen. See also INS.

Buccal Swab. Used to collect DNA samples from subject’s inside cheek. Buccal,
relating to the cheek. See www.paternitynet.com

Burden of Proof. The party asserting a claim must prove such claim is true.

In divorce, each party making a claim for a fault divorce must prove such
fault.

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Cannons of (Legal) Ethics. State rules, usually established by each state's

supreme court, that regulate the behavior of lawyers. Violations can lead to
warnings, fines, suspensions, and even license revocation.

Regulations are pro-consumer; they attempt to protect innocent parties from

unscrupulous and improper behavior. If you think your lawyer is doing
 something wrong, i.e., it doesn't pass the 'smell' test, review the Cannons
for possible violations. Also called 'Code of Professional Responsibility.'

Capias. A civil arrest warrant ordering the sheriff or other officer to take a person
into custody and deliver him to court. This procedure is used when a party refuses
to appear in court.

Cause of Action. A lawsuit. To bring an action (lawsuit). Certain wrongful acts

are actionable offenses, meaning that such acts are the ground for a lawsuit, i.e.
they create a cause of action.

Central Authority (CA). See Hague Convention (Convention). Under the

Convention each participating country must designate a CA to handle Hague
Convention child abduction cases. The U.S. Central Authority is the Department
of State’s Office of Children’s Issues. The National Center on Missing and
Exploited Children (NCMEC) is responsible for incoming cases. The CA helps
parents seeking the return of a child to obtain legal services; provides the local
court with information on the Convention; gets periodic updates from the court;
processes requests for background checks on the child from the child’s country of
habitual residence (see Habitual Residence); obtains a written opinion on the
wrongfulness of the alleged violation from the country of habitual residence; may
ask a local social welfare agency to investigate child’s welfare.

Certified Divorce Financial Analyst (CDFA)™. A trained professional who has

passed certain tests to become a financial analyst specializing in divorce issues.
May also be a Certified Financial Planner (CFP)®.

Certified Financial Planner (CFP)®. Credentials awarded by Certified Financial

Planner Board of Standards Inc. (CFP Board) to individuals who meet education,
examination, experience and ethics requirements.

Change of Venue. See Venue; Change of Venue

Child Abduction. See Parental Kidnapping

Child Custody. See Custody--Legal and Custody--Physical

Child Support. Court-ordered payments from the non-custodial parent to the

custodial parent that are not tax deductible by the non-custodial parent, nor
includable in the custodial parent's taxable income.

Child Support Enforcement Unit. State agencies established under federal

Social Security Act under Title IV-D entitled “Child Support and Paternity
Establishment”, known as IV-D agencies, to collect data, establish parentage, if
necessary, and collect child support; initially for welfare recipients, later expanded
to include non-welfare cases. IV-D agencies may collect alimony if child support
is owed.

Child Support Guidelines. State guidelines requiring the non-custodial parent,

under normal circumstances, to pay child support based on a percentage of
income.

The federal government mandates that all states establish guidelines for
child support. The battle ground in many cases is the definition of 'income,'
especially 'in-kind' compensation such as a company car. Contact your
state's child support enforcement office as set forth in the State-by-State
Resrouce Center.

Civil Union. A legally recognized relationship between two women or two men,
but not a marriage, established in Vermont and Connecticut, with the same
benefits as marriage. Politically more acceptable than same sex marriage in 2005.
The Union may be certified or performed by a member of the clergy or state
official.

Clear and Convincing Evidence. See Burden of Proof. One standard of proof in
a civil case, meaning the degree of difficulty facing a litigant in proving his or her
case. A high standard, but not as high as the burden the prosecution must meet in a
criminal case by proving guilt beyond a reasonable doubt. Compare
Preponderance of the Evidence.

COBRA (Consolidated Omnibus Budget Reconciliation Act). Federal

legislation that guarantees all persons covered by medical insurance, the right, for
a monthly fee, to continue coverage even if employment or marital status changes.

COBRA covers ex-spouses even after one party remarries, for a fixed time
period. For instance, if you become ineligible by virtue of your spouses'
remarriage, you may continue on his policy for approximately 18 months. It
can be expensive, sometimes up to $600 per month. Make sure all health
insurance matters are covered in your separation agreement, including
current and future medical insurance and uninsured medical expenses.

Code of Professional Responsibility. See Cannons of (Legal) Ethics

Cohabitation. Unmarried persons living together as if married.

 Cohabitation becomes a problem when 1) in parties who have minor
children the custodial parent takes in a lover during the divorce process and
the non-custodial parent files a motion to prevent such behavior, and 2) an
ex-spouse, usually ex-wife receiving alimony, cohabitates rather than
remarries in order not to lose her alimony. Many judgments terminate
alimony upon remarriage. Cohabitation during divorce can make a bad
impression on the court and is usually unwise.

Collaborative Law. a litigation-free means of settling disputes. See Alternative

Dispute Resolution. Both parties and their collaborative lawyers agree in writing
that they will not use court proceedings. If the parties fail to reach an agreement,
collaborative lawyers are dismissed. New counsel must be retained to litigate.

Collaborative Practice. See Collaborative Law. In addition to lawyers, mental

health and financial professionals participate in the settlement process.

Commencement of Action. The official beginning of your case, defined as the

time of filing your complaint for divorce with the court.

Complaints are not accepted for filing unless they comply with court rules
regarding form and substance and are accompanied with the filing fee.

Common Law. A body of law, sometimes referred to as 'case law,' developed by

judges over many years which establishes how courts interpret statutes and handle
matters not specifically covered by statutes.

Common Law Marriage. A judicially-recognized marriage in some states,

generally based on cohabitation. Courts in these jurisdictions may recognize
marriages despite the parties' failure to comply with local marriage statutes.

Community Property. A system of property division which divides equally all

property -- no matter in whose name it is held -- acquired during the term of the
marriage, excluding inheritances and gifts in some jurisdictions.

There are nine community property states: Arizona, California, Idaho,

Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin
(quasi-community property). In these jurisdictions property acquired prior
to the marriage stays with the party who acquired it. Certain jurisdictions
exclude property that comes into the marriage by gift and inheritance. Some
community property states allow equitable distribution where justice is
served. These rules vary state to state and are fraught with exceptions.
Consult local counsel.
Comparable Real Estate Sales. Recent real property sales used by real estate
appraisers to establish the value of the real estate in question (subject property).
Sales are usually in the same area and are similar in age, function, size, condition
and location. Any differences must be quantified by a dollar amount that is added
or subtracted from the appraised value of the subject property.

Complaint for Contempt of Court. See Contempt of Court, Complaint for

Complaint (Petition) for Divorce. A complaint for divorce initiates the divorce
proceeding by identifying the parties; stating the grounds for divorce; stating all
claims against the defendant; and requesting the court to grant a divorce, grant
custody, divide property, and order support. All complaints must be filed with the
court and served along with a summons.

Complaint for Modification. See Modification, Complaint for

Confidential Relationship. See Privilege

Conflict of Interest (Rules). Lawyers are prohibited from entering certain

relationships in which the lawyer, by virtue of his profession, received or appeared
to receive confidential information about the opposing party. No lawyer can ever
represent both sides in a divorce, even if uncontested.

If you interview a divorce lawyer and decide not to retain him, that lawyer
is barred from representing your spouse. If there is a certain lawyer that you
don't want your spouse to use, consider paying for an appointment and
sharing confidential information. Whether you use that lawyer or not, he is
barred from representing your spouse.

Conjugal; Conjugal Rights. The right of married persons to enjoy each other's
physical comfort.

Consolidation. The joining of two related cases.

Divorce and independent marriage-related torts such as assault and battery,

malicious interference with one's business are often consolidated. Actions
against third parties related to the marriage, such as a spouse's parents, can
also be consolidated based on the legal standard, whether 'justice would be
served.'

Contempt of Court, Complaint for. Legal action brought when the

plaintiff/petitioner alleges a willful failure to obey a court order or judgment.
 Most such complaints are filed against husbands or ex-husbands for failure
to make support payments. The defendant is generally entitled to an
evidentiary hearing (trial) since he faces possible incarceration. Even where
the court finds the defendant guilty of contempt, defendants are usually
given the opportunity to comply with the violated order, or 'purge the
contempt.' Jail is an extraordinary remedy. Remember, the object is not to
kill the golden goose; jailbirds can't pay support.

To commence a contempt proceeding in many jurisdictions a complaint for

contempt must be filed with the court, and a copy of the complaint, along
with a summons, must be served on the defendant.

Contested and Uncontested Divorce. In contested divorces, the parties are

adversarial, they cannot agree to a separation agreement. In uncontested divorces,
the parties agree to all matters, and present an executed separation agreement to
the court for approval.

Contingency Fee. In divorce cases, an unethical type of fee agreement that

provides the lawyer with a percentage of your settlement or judgment.

No greedy, unethical lawyer has any business taking a percentage of your

settlement or judgment. Why should a non-spouse share in the marital
estate' Does your lawyer intend to pay you alimony' While appropriate in
personal injury and certain other types of cases, contingency fees have no
place in divorce proceedings.

If you interview a lawyer who wants a contingency fee, say 'have a nice
day' and report him to the state bar. Such fees in divorce cases are
prohibited by the Cannons of Ethics in most states. While the term 'legal
ethics' appears to be an oxymoron, state regulators take these charges
seriously.

Co-respondent. A third-party co-defendant in a divorce action accused of

committing adultery with the defendant.

When adultery was the sole ground for divorce, this awkward procedure
was commonplace. Today few divorces involve named third- party
defendants. Question your lawyer whether the potential benefits are worth
the time, expense, and hard feelings. Do not allow your emotions to control
this decision.
Counsel Fees Pendente Lite, Motion for. 'Pendente Lite' means during the
litigation. Generally, a motion is filed by the wife requesting sufficient funds from
the husband, or from the marital estate, to prosecute or defend the divorce action.

Many courts routinely grant fees in order to 'level the playing field.' If you
don't have access to liquid assets, consider having your lawyer filing this
motion. If your spouse is overly litigious, ask the court for him to pay your
fees out of his portion of the marital estate.

Counterclaim. See Answer and Counterclaim

Court. The term 'court' has three meanings:

1) a physical place, e.g., courtroom, courthouse

2) a quasi-political entity, e.g., superior court, family court 3) the actual

judge or justice acting in her official capacity

Court Arbitrator. See Family Service Officer; Court Service Officer; Court
Mediator; Court Arbitrator

Court Docket. The formal court record of proceedings before it. Notations of all
pleadings, orders, and judgments are entered into a docket book.

In divorce court the first entry is the complaint or petition for divorce. The
final entry is the judgment of divorce. If the case resurfaces because of a
complaint for modification or a complaint for contempt, the docket is
reopened and continued.

If you are concerned that your spouse is about to file for divorce, visit the
court to examine the docket. Ask how long a new filing takes to show up on
the docket.

Court Investigator. See Investigator; Court Investigator

Court Mediator. See Family Service Officer; Court Service Officer; Court
Mediator; Court Arbitrator

Court Order. See Order; Order of the Court

Court Services Officer. See Family Service Officer; Court Service Officer; Court
Mediator; Court Arbitrator

Courtroom Etiquette:
 1) Treat the judge respectfully. Never interrupt or be argumentative,
always ask permission to speak. In An Officer and a Gentleman, drill
sergeant Lou Gossett reprimands recruit Richard Gere for referring to the
sergeant as 'you.' Gossett points out that a 'ewe' is a female sheep. Always
address the judge as 'your honor,' 'judge,' or 'the court' -- but never refer to
the judge as 'you.' Finally, you may feel the judge is biased, disrespectful,
insensitive, or just plain dumb. You have a right to these feelings, but
never, ever, treat the court disrespectfully, especially if you want respect.

2) Treat opposing counsel respectfully. Wait your turn to speak and don't
interrupt or make faces and gesticulate when opposing counsel is speaking.
Great self-control is necessary, especially when opposing counsel
intentionally lies or inadvertently makes misrepresentations to the court
based on his client's misrepresentations to him. You'll get your turn.

3) Dress appropriately, be punctual, and be serious. Cry if you must, but

avoid overly dramatic displays. Do not raise your voice or get into side
conversations or fights with yourspoused or his lawyer.

4) Tell the truth.

Court's of Equity. See Equity; Courts of Equity

Coverture. The period of time during which a women is married.

This term is used when establishing the value of property acquired during
the term of the marriage, i.e., coverture. For instance, pensions are often
appraised based on coverture; only those contributions during the term of
the marriage are taken into account.

Cross-examination. Following the direct examination of a witness, cross

examination is the follow-up questioning ('examination').

If your lawyer is conducting a cross-examination, that means the witness

was first called by the opposing side. For instance, after your spouse
testifies during direct examination, your lawyer has the opportunity to
cross-examine. As you know, these can be messy since the rules of
evidence allow almost anything that will impeach the witness.

Cruel and Abusive Treatment. Ground for divorce in a fault divorce, wherein
the plaintiff must prove physical or emotional harm to her or himself.
 Ask your lawyer for the legal definition in your state. If you forego this
claim, you always retain the right at trial to enter into evidence 'the
behavior of the parties during the marriage.' See Fault and no-fault Divorce.
Failure to assert abuse in the complaint simply precludes the court from
granting a divorce on this ground, but the court is free to consider evidence
of spousal abuse in making its decision.

Curtesy. See Dower

Custodial Parent. Usually refers to the parent with whom the child(ren) reside(s),
i.e., the parent with Physical Custody or Primary Physical Custody.

Custody Evaluation. See also Psychological Evaluation and Psychological

Testing. Usually conducted by a mental health professional, sometimes called a
Guardian ad Litem or court investigator. May include interviews, psychological
testing, and home visits. Reports sometimes include nonbonding recommendations
to the court, and are submitted to the court and attorneys for the parties.

Custody--Legal. A legal status or 'custodianship' vesting authority to approve all

major decisions affecting a minor child. 'Joint,' 'split,' and 'shared' legal custody
require both parents' approval of all major decisions.

In cases of child abuse, and in highly contested custody proceedings where

the parties can't communicate, sole legal custody may be granted to one
parent, usually subject to visitation or supervised visitation. If parents with
joint legal custody cannot agree about a major decision, then the court
makes the decision. Courts often defer to the custodial parent, i.e., the
parent with primary physical custody.

Custody--Physical. Relates to the physical location of the child. The adult with
whom the child resides is said to have physical custody. Such terms as 'sole,'
'primary,' 'shared,' and 'joint' are used to describe various parenting and visitation
plans.

Most custody fights are fought over physical custody since there is usually
a strong presumption of joint legal custody. Studies demonstrate that
protracted custody fights have devastating effects on the mental health of
children. Years later as adults, these victims still suffer.

Cycle of Violence. Phases of an abusive relationship where the batterer or violent

party’s behavior commences with a seemingly non-violent romantic nature that
becomes irrationally jealous and possessive over time, causing victim to go to
great lengths to placate the batterer who inevitably becomes physically, sexually
and/or verbally violent and explosive, followed by abject and apologetic behavior,
but without acknowledgment or acceptance of blame or responsibility for own
conduct. Batterer blames others and the victim. The cycle continues throughout
the relationship, usually with increasingly shorter periods between violent
outbursts. See Stalking.

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Dating Violence. Violence committed by a person who is or has been in a social

relationship of a romantic or intimate nature with the victim. The existence of such
a relationship is determined by the following factors: 1) length of the relationship;
2) type of relationship; and 3) frequency of interaction between the persons
involved. See http://www.ojp.usdoj.gov/vawo/laws/vawa_summary2.htm

Daubert Test. Reference to William Daubert v. Dow Pharmaceuticals, Inc.,

decided by the U.S. Supreme Court in 1993. Relative to Rules of Evidence.
Leading case describing judge’s task in deciding whether to admit so-called expert
opinion into evidence based on scientific validity and applicability to the case;
whether the science has been tested and subject to peer review and publication;
and what the rate of error is. Important standard when dealing with psychological
testimony and evaluations in child custody or divorce cases. Later cases, Joiner
(data must be reasonably relied upon by experts, 1997) and Kumho (expands
Daubert Test beyond scientific expertise to all technical and specialized
knowledge, 1999), also decided by the U.S. Supreme Court, refines the Daubert
test. Compare Frye Test. See Rules of Evidence.

Death. Event causing the legal dissolution of the marriage when a spouse dies.
Compare Divorce and Annulment.

Decision and Judgment. A decision is a judge's 'finding of facts' and 'conclusions

of law.' The decision forms the factual and legal basis of the court's judgment.

Judges have great discretion to interpret the facts and draw inferences
therefrom. See Appeal.

Decree Absolute. See Interlocutory Judgment; Interlocutory Decree; Judgment

Nisi

Decree of Dissolution. See Divorce Decree.

Decree Nisi. See Interlocutory Judgment; Interlocutory Decree; Judgment Nisi

de facto. Latin meaning 'in fact.' Acting in a certain manner, usually as if
complying with what a court might order, without such order being in place. For
instance, if one parent is making voluntary child support payments pursuant to the
guidelines, he is paying de facto guideline support, even though no court has so
ordered.

In contrast, de jure means in compliance with an order or judgment.

De Facto Parent. A person who has been found by the court to fulfill the role of
parent, providing the child’s physical and psychological needs, for a substantial
period of time.

Deposition. See Discovery; Pretrial Discovery

Desertion. One of several grounds for a fault divorce. Most states require the
plaintiff to prove several of the following factors: 1) the defendant left the marital
home for over one year; 2) the parties failed to agree to such departure; 3) the
party who left failed to pay support; and 4) the reason for the departure was not
caused by the plaintiff.

Ask you lawyer which factors apply in your state. This claim is
cumbersome and may not be worth the trouble.

DHS. Department of Homeland Security. See also INS. See www.dhs.gov

Disciplinary Rules. See Cannons of (Legal) Ethics

Discovery; Pretrial Discovery. Discovery is the formal procedure for gathering

information pursuant to rules of court. The primary methods are:

1. Request for financial statement Immediately demand a financial

statement and follow up with additional requests during the pendency of the
case. Your objective is twofold: 1) fact-finding and 2) using any
contradictory information among statements to impeach your spouse t trial

2. Request for production of documents and things If you followed our

advice, most documents are already in your possession. Don't waste time
making unnecessary requests for production, unless for strategic reasons
your want to fool the enemy into believing that you don't possess certain
documents.

3. Interrogatories propounded You are allowed to ask (propound) written

questions (interrogatories) to your spouse. Skip the boiler plate, and keep
questions focused. Your objective is information gathering and preparing
 evidence for trial, even if the evidence consists merely of perjury, or
inconsistent statements used to impeach your spouse. Unlike 'admissions'
(see below), the court may limit the admissibility of the answers to
interrogatories propounded.

4. Depositions; Party Deposition A formal, out of court questioning under

oath of a party (the 'deponent') by opposing counsel. A stenographer is
usually present and produces a transcript. Used for information gathering,
depositions also force a witness to commit to a certain story that cannot be
changed easily at trial without facing impeachment. Depositions are
expensive, provocative, and can offer your opponent a dress rehearsal for
trial. Don't call them unnecessarily.

5. Deposition Subpoenas; Subpoena Duces Tecum A third-party

subpoena to attend a deposition and bring requested documents. These
subpoenas are typically issued to employers and business associates. We
often use this procedure when opposing party is uncooperative, dishonest or
doesn't keep good records. If you want documents but not testimony,
arrange for them to be delivered without the expense of a deposition.

6. Keeper Deposition; Keeper of the Records Deposition Same as the

Subpoena Duces Tecum, it forces the person responsible for records at a
business to produce and authenticate documents. Such person's sole role is
usually identification of documents. Keepers usually have no substantive
testimony relating to the case.

7. Request for Admissions Similar to interrogatories but 1) the questions

require a yes or no response, 'affirmed' or 'denied' and 2) the response is
automatically admissible evidence at trial for any relevant purpose.

8. Motion for physical or mental examination Physical examinations are

sometimes requested when the opposing party, usually the husband, asserts
that a physical disability impairs his ability to make support payments.
Mental examinations are more unusual, occurring mostly in contested
custody cases, or if one party is seriously impaired. Requesting a mental
examination is highly provocative, so expect retaliation in the form of a
request for you to be examined likewise.

9. Request to enter upon land A party can use the discovery to inspect real
estate, often relating to valuation.

Discovery Problems. If you are being unreasonably oppressed by discovery, ask

the court for a 'protective order' to quash, i.e., cancel, or limit the scope of a
deposition. If the other side fails to cooperate with your requests, you can file a
'motion to compel' and request sanctions. Fee awards are unusual; judges often
tolerate substantial misbehavior before punishing the guilty.

Disinherit; Disinheritance. To deprive a rightful heir from his or her inheritance.

State laws prohibit spouses from disinheriting each other. The surviving
spouse is usually entitled to at least one third, no matter what is contained
in the will. See Dower and Curtesy. Also see Inheritance; Inheritance
Rights; Inheritance Expectancies.

Dissipation of Assets. Wasting of assets that might otherwise be available for

distribution upon divorce. Gambling, extravagant spending, or excessive
borrowing and use of credit cards are examples of dissipation.

Divorce Agreement. See Agreement; Separation Agreement; Property Settlement

Agreement; Marital Agreement

Divorce Decree; Decree of Dissolution; Judgment of Divorce. The court's final

judgment after expiration of the interlocutory or judgment nisi period. Upon this
date you are legally divorced and can remarry. Generally, the final decree occurs
automatically upon termination of the waiting period. Additional court filings and
appearances are usually not required.

Divorcement; Bill of Divorcement. Same as divorce and divorce decree.

Docket. See Court Docket.

DOMA. Defense of Marriage Act of 1996. Federal law that provides for the
nonrecognition of same sex marriage.

Domestic Relations Order. Compare Qualified Domestic Relations Order. A

court order used to allocate interests between divorced spouses in nonqualified
pensions, usually state and municipal pensions, as compared to private retirement
accounts like 401(k)’s. The term "qualified" means the retirement account is
covered by or qualified under ERISA – a federal law dealing with employee
benefits. See ERISA. www.dol.gov/ebsa/compliance_assistance.html.

Domestic Tort. See Tort; Marital Tort; Domestic Tort

Domestic Violence Hotline, National. created and funded under the Violence
against Women Act of 1994 and reauthorized and funded under the Violence
against Women Act of 2000. See
http://www.ojp.usdoj.gov/vawo/laws/vawa_summary2.htm
Domicile. A person's 'legal' home, i.e., where the person spends most of his time,
or intends to return if currently living elsewhere.

In divorce, domicile is important in establishing jurisdiction and selecting

venue.

Domicile, Compare Residence. A party has one domicile, but may have several
residences. Key term for deciding where divorce should be filed or which state’s
law applies to a case. See also UIFSA, UCCJEA and Hague Convention.

Dower. The wife's common law right to inherit from her husband.

In most states the surviving spouse cannot be disinherrited and is entitled to

one third of the husband's property. Conversely, the husband's right to
inherit from the wife is called curtesy. Be advised that until your judgment
of divorce is absolute, your spouse may have the right to inherit if you die
during the nisi period. In some states, however, an executed separation
agreement waiving the right to inherit may supersede inheritance rights
prior to the judgment becoming absolute.

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Emancipation. In divorce court, 'emancipation' does not necessarily mean 'legal

majority,' i.e., 18 years old. Depending on the state and the educational status of
the child, emancipation may occur between ages 18 and 23.

Make sure your separation agreement defines 'emancipation' as occurring

after four years of college, so you continue receiving child support while
your child(ren) attend(s) college. They need a place to come home for
summers and vacations.

Equitable Distribution; Equitable Assignment; Equitable Division (of

Property). In equitable distribution states, all property, whenever or however
acquired, regardless of legal title, is subject to equal or unequal division.

Most states divide property according to equitable distribution statutes.

Parties often have misconceptions about what is subject to division. For
instance, in some states, if your spouse inherits money before marriage,
even if the funds were always kept in his name and he never used them for
family purposes, the funds are still subject to division. Such funds are part
 of the marital estate subject to equitable division. In this situation the
division could be unequal, especially if the marriage was of short duration.

Each state's divorce laws set forth mandatory 'factors' judges must consider
before making an equitable property division or awarding alimony. Some
states also have 'discretionary' factors courts may consider. Here are some
mandatory 'factors' incorporated into most state laws. Ask you lawyer for a
copy of your state's statute.

1. Length of the marriage

2. Age, health, occupation of the parties

3. Station in life and life-style

4. Liabilities and needs

5. Contribution to the marital estate (economic, domestic, child-

rearing, etc.) 6. Assets and liabilities, sources and amount of income

7. Behavior of the parties during the marriage

8. Vocational skills, employability

Equity; Courts of Equity. Equity is a body of law that concerns itself more with
fairness than with the strict, and sometimes harsh, application of common law.

Historically, there were separate 'courts of equity,' but today, most courts
have 'equity jurisdiction,' i.e., they can apply 'equitable principles' to cases,
including divorce. One commentator called these courts 'anti-law' courts
because they were able to circumvent unfair laws. But do not expect your
judge to ignore statutes and established common law.

ERISA. Employment Retirement Income Security Act. A federal law governing

employee benefits in private industry.
www.dol.gov/ebsa/compliance_assistance.html

Estate. Assets and property interests owned by a party, often referred to in divorce
cases as "the marital estate", meaning assets subject to division between husband
and wife. May exclude assets owned before marriage; assets covered by a
prenuptial agreement; or assets acquired by gift or inheritance. Check state law.
Ethics; Legal Ethics. A code of conduct, also known as the Code of Professional
Responsibility, imposed on attorneys. Violations may subject the attorney to
disciplinary proceedings and malpractice claims. See Cannons of (Legal) Ethics.

Evidence. Any testimony, document, or demonstrative material.

Evidence cannot be considered, i.e., used as the basis of a court's decision,

unless such evidence is admissible under the rules of evidence. Note that
when courts consider making temporary orders at motion sessions, the rules
of evidence generally do not apply since the court's orders are only
temporary, generally without prejudice at trial. See Rules of Evidence.

Evidentiary Hearing. See Trial; Hearing on the Merits; Evidentiary Hearing

Exhibit(s). Any evidence attached to a pleading or introduced at trial, for

example, a husband's pay stub attached to a motion for temporary support.

Ex Parte: hearing, motion, order. Ex parte means without notice to, or

attendance of, the opposing party.

In response to an ex parte motion, i.e., a motion without notice to the

opposing spouse, the court conducts an ex parte hearing without the
attendance of the spouse. Based on this hearing , an ex parte order is issued,
and the opposing spouse receives notice of the fiat accompli.

Often attachments are issued ex parte to avoid giving notice to the

defendant, since, a person who knows his property is about to be attached
might quickly sell or mortgage it and secrete the money.

Expert Witness. In divorce cases, most experts are called to testify as to the value
of the marital home, pensions, and privately-held businesses. In child related
disputes, mental health professionals are often called to testify.

Extraordinary Expenses. Not the usual or ordinary costs or expenses, sometimes

defined in marital settlement agreements as any expense in excess of a certain
dollar amount, e.g. any single expense or series of expenses in excess of $500,
usually requiring the prior permission of both parties before an extraordinary
expense is incurred for which both parties are liable. Compare Ordinary Expenses.

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Fair and Reasonable. The judicial standard for approving marital agreements.
 Note that in non-divorce areas of the law, there are no standards of fairness;
winner takes all, and the lawyers fight to the death. In divorce, lawyers'
zealous advocacy must be tempered by justice, however, divorce lawyers
often act as if they represent the plaintiff in a personal injury case, trying to
win at all costs without consideration of the consequences. Avoid these
zealots.

Fair Market Value. The price a willing buyer pays a willing seller; not a fire sale
price or a sale between family members for less than full price. A price paid after
an arm’s length negotiation, not a transaction between parties paying more or less
than what a reasonable buyer would pay. Compare Replacement Value.

Family Service Officer; Court Service Officer; Court Mediator; Court

Arbitrator. Court employees to whom cases are referred for dispute resolution.

As disinterested third parties, these folks are useful in bringing parties

closer together. If one side takes an unreasonable position, the court
mediator can reel him in.

Fault and No-fault Divorces. In fault divorces, the complaint for divorce must
state grounds for divorce. They include cruel and abusive treatment, adultery,
abandonment, and other types of misconduct.

Don't be fooled by terminology. Each ground is a term of art, a specific

legal definition, not a layman's definition. Ask your lawyer about grounds
and their definitions. But remember, conducting a moral campaign to prove
fault may backfire. It's a high price for self-exoneration, so question
counsel whether it really makes sense.

No-fault complaints for divorce merely allege an 'irretrievable breakdown'

of the marriage, or use similar language. The court must find that the
marriage has 'irretrievably broken down,' leaving no chance of
reconciliation.

Since the 1970s most states have allowed no-fault divorces. No-fault
divorces are contested or uncontested. Where the parties present an
agreement for the court's approval, their divorce is said to be uncontested. If
the parties can't negotiate an agreement, their divorce is contested and goes
to trial. Fault and Punishment. Divorce judges seek fair results, not
retribution.

Many parties believe judges punish fault by penalizing the guilty. Judges
are not grand inquisitors reigning terror on unfaithful spouses. Behavior
 must be outrageous, and we mean totally shocking, before most judges will
punish the guilty.

Federal Court. Courts established by the Congress of United States. Federal

courts do not usually deal with family law cases, but may decide where a custody
case should be tried (see Hague Convention) and other ancillary issues such as
discharging a debt owed to a former spouse in bankruptcy or deductibility of
alimony. See State Court.

Fee Agreement; Retainer Agreement. The written contract between you and
your lawyer.

The Fee Agreement should provide for monthly invoices; hourly billing
(including the rates of the attorney, associates, and paralegals); the amount
of retainer, if any; how the retainer is replenished if depleted; and the
disposition of any funds not used. If the Fee Agreement allows the lawyer
to keep any unused portion of the retainer, think of your local supermarket
cashier saying, 'it is our policy not to give change.' Never say, 'keep the
change,' when thousands of dollars are involved. Avoid these crooks.

See Contingency Fee Agreement and Success Fee Agreement for ethical
problems with these types of Fee Agreements.

File; Filing. Any document submitted to and officially received, i.e., 'docketed'
by, the court.

Final Judgment. After a court enters a final judgment, you may remarry. See also
Interlocutory Judgment; Interlocutory Decree; Judgment Nisi.

Financial Statement. Each party must complete, file, and serve a court-furnished
financial statement, often printed on colored paper so it can be easily identified
'sealed,' i.e., kept out of records available for public inspection.

Perhaps the most important divorce document, but often neglected by many
lawyers, it is a major trap for the unwary. Honest mistakes 'can and will be
used against you in a court of law.' For example, monthly finances can't be
converted into weekly numbers by dividing by 4, as there are 4.33 weeks in
a month. We see excellent lawyers on big-money cases blunder. Make sure
your lawyer focuses on details. It is worth the additional expense in legal
fees. If counsel wants to wing it, get a new lawyer, especially if the case is
headed for trial. See Discovery.
Find; Findings. After considering the evidence presented, a court or jury
interprets the evidence and sets forth what it believes, i.e., finds, are the actual
facts. Courts have great latitude in weighing evidence and in believing or
disbelieving witnesses. The court's findings, along with its 'conclusions of law,'
form the basis for the court's decision. See Decision and Judgment.

Forensic. Of, or pertaining to, courts of law

In divorce, forensic accountants are used to value marital assets, and

forensic psychiatrists/psychologists are used in custody and visitation cases.
Although many experts are competent, few have courtroom, i.e., forensic
experience. Make sure counsel prepares your forensic expert for a rigorous
cross-examination.

Fraud. Making a material misrepresentation or failing to disclosure a material fact

to induce another to give up something of value.

Most fraud claims in divorce relate to fraud in the inducement to marry (see
Annulment), separation agreements, and the introduction of evidence at
trial. In order to upset an earlier judgment, the fraud must be material, and
the plaintiff (victim) must prove that 1) she suffered substantial harm as a
result, and 2) she could not have detected the fraud at the time it occurred
by using reasonable care.

Fraudulent Conveyance. A debtor’s transfer of an asset out of the debtor’s name

in an attempt to keep it beyond the reach of a creditor. The conveyance is
fraudulent if it occurs within a certain time frame before commencement of a
lawsuit or bankruptcy and if the debtor did not receive a fair price for the asset in
question. If a court deems the transfer fraudulent, the transfer can be undone.

Freeze Assets. See Automatic Restraining Order.

Frye Test. Frye v. United States, decided in 1923. Relative to the Rules of
Evidence, a test applied by a judge to determine whether so-called scientific
evidence should be admitted because the science is “generally accepted” in the
scientific community. An earlier test. Compare Daubert Test. See
http://www.law.harvard.edu/publications/evidenceiii/cases/frye.htm

Full Faith and Credit. A term found in the United States Constitution (Art IV,
Sec. 1) requiring each state to honor the legal judgments of other states.

Such judgments must comply with the United States Constitution in all
other respects. If a court did not have jurisdiction over a party (for instance,
 the person never set foot in the state), then a judgment affecting that person
might violate the 'due process' clause of the Constitution.

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Gamete Provider. Egg or sperm donor. Compare Gestational Carrier and

Biological Mother. See www.abanet.org/irr/hr/sp98shapiro.html

Garnishment; Wage Assignment; Wage Attachment. A court order to a third

party, usually an employer, requiring the employee's wages to be attached
(automatically deducted from a paycheck) and assigned (paid) to another party,
usually the wife.

Most states favor attachment for support payments. It avoids late or missed
payments and saves court time. Fewer contempt of court actions are filed.
A 'contingent' or 'suspended' wage assignment requires the completion of
appropriate forms, and does not become active unless, and until, payments
are missed. This is a strong inducement for your spouse to stay current on
his payments.

Gestational Carrier. Woman who carries and delivers a child, but may have no
biological connection to the child. Surrogate mother. Compare Gamete Provider.

Grandparent Visitation. See Visitation, Grandparent

Grave Risk of Harm. See Hague Convention. A legal defense in Hague

Convention child abduction cases when defending against lawsuit for the return a
minor child to the child’s state of habitual residence because the child would be
exposed to physical or psychological harm or placed in an intolerable situation.
Must be established or proved by clear and convincing evidence. See Clear and
Convincing Evidence. To be interpreted narrowly by a court. Not to be confused
with a hearing on the child’s best interests. See Best Interests.

Ground(s) for Divorce. Each state's divorce statutes set forth certain improper or
troublesome behavior that constitutes a 'legal reason' for the court to grant a
divorce.

The following list, based on Massachusetts law, is for illustrative purposes

only. Each term has a legal definition which may differ from commonly
used English. Your state may 1) not recognize all the grounds set forth, and
 2)may include other grounds. Consult local counsel. See Fault and No-Fault
Divorce.

1. Adultery

2. Cruel and abusive treatment

3. Utter desertion

4. Long-term incarceration

5. Gross and confirmed habits of intoxication

6. Non-support 7. Impotency

8. Irretrievable breakdown of the marriage (no-fault)

Guardian ad Litem ('G.A.L.'). A court-appointed individual who, for the

purpose of pending litigation, puts himself in the shoes of a legally incompetent
person such as a minor child. He also investigates the matter and files a report with
the court

G.A.L.s are usually lawyers or mental health professionals, depending on

the court and circumstances. They investigate the matter, use their own
judgment in determining the 'best interest of the child,' and report their
findings and recommendations to the court. In contested custody and
visitation matters, courts frequently appoint G.A.L.s for the children.

If a G.A.L. is appointed in your case, treat him respectfully -- return phone

calls and be cooperative. Don't alienate the G.A.L. despite any resentment
you may harbor. It will only hurt your children. Courts sometimes appoint
an attorney for the child(ren). Unlike the G.A.L. who uses her independent
judgment, the appointed attorney promotes the stated wishes of the child. In
other words, she takes orders from legal incompetents. See Attorney for the
Child(ren).

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Habitual Residence. Term used in the Hague Convention. Refers to where the
child last lived when a court deals with child abduction, but does not define how
long or with whom. Compare with Home State as used by the UCCJEA and
PKKPA.
Hague Convention on the Civil Aspects of International Child Abduction. See
Parental Kidnapping.

Head of Household. A filing status under federal tax rules. You may be able to
file as head of household if you meet all the following requirements. You are
unmarried or “considered unmarried” on the last day of the year. You paid more
than half the cost of keeping up a home for the year. A “qualifying person” lived
with you in the home for more than half the year (except for temporary absences,
such as living at school). A dependent parent does not have to live with you. See
www.irs.gov/faqs/faq-kw96.html

Hearing on the Merits. See Trial; Hearing on the Merits; Evidentiary Hearing

HIPAA. Health Insurance Portability and Accountability Act of 1996. Under

HIPAA, the federal government established a federal minimum standard of
privacy protections for patients. Regulations limit the ways that health plans,
pharmacies, hospitals and other covered entities can use patients' personal medical
information. www.hhs.gov/news/facts/privacy.html

Most health care providers were required to comply by April 2003. All
were required to comply by April 2004. Exceptions are made for records
requested as part of a court proceeding. State law may provide even more
stringent protection for patients, requiring a judge to decide whether certain
records should be produced for an opponent’s inspection and possible use at
trial.

Hold Harmless; Hold Harmless Agreement. The contractual assumption of

certain liabilities by a party who agrees: 1) not to look to the other party for
assistance in satisfying such liabilities, and 2) to defend ('indemnify') the other
party against third party claims, if a third party, say a creditor, sues you.

If your spouse agrees to indemnify you, he will defend any actions against
you including paying your attorney fees, court costs, and damages against
you, if any are awarded.

Home State. See UCCJEA and PKPA. The State where a child lived with a parent
or a person acting as parent for at lest six consecutive months immediately before
the commencement of child custody proceedings. If a child is less than six months
old, then the State where the child lived from birth. A period of temporary absence
is included.

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Impeach; Impeachment of Testimony. Discrediting a witness by proving lies,
inconsistencies in stories told, and untrustworthiness. The witness may be
impeached during cross-examination or by the direct testimony or evidence of
another witness. See Direct and Cross Examination.

Prior inconsistent statements made at a deposition or in written

interrogatories are classic examples of impeachment during cross-
examination. In Camera Hearing. A closed-door hearing in judge's
chambers, usually concerning sensitive child-related issues.

Imputed Income. Concept applied when a party claims he or she cannot work, or
no longer makes as much money as the party did before the commencement of the
lawsuit. The opposing party argues income should be attributed to the party
because he or she is trained, educated, experienced and/or capable of earning
income, but is voluntarily unemployed or underemployed. Often used when
calculating child support. May be applied to one or both parents.

Infant. A person who has not reached legal majority, usually 18 years of age.
Also, referred to as a 'minor,' or unemancipated child.

Inheritance; Inheritance Rights; Inheritance Expectancies. In equitable

distribution states, inheritance rights, say from your parents, can be considered by
the court.

Note that most inheritance 'rights' are mere expectancies, i.e., they are not
vested since you may be disinherited. As a practical matter, even if the
court takes into account expectancies, they are generally not given much
weight, especially if one's parents are healthy. Courts avoid placing an
economic value on assets of uncertain worth that may or may not be
received upon some uncertain future date.

Injunction; Injunctive Relief. A court order prohibiting certain activity. See

Temporary Order; Temporary Restraining Order

Injunctions are generally 'negative,' i.e., they prohibit certain activities.

Injunctions which require certain activity are called 'affirmative'
injunctions. Outside divorce, most injunctions are 'negative.' It would be
impossible to enforce certain affirmative orders, such as requiring an opera
singer to sing. Affirmative injunctions are more common in divorce cases
especially since they relate to minor children, often covering to visitation.
Property-related injunctions are also common, usually restricting the sale or
 transfer of property, borrowing, and spending on non-necessities. See
Restraining Order.

Innocent Spouse; Innocent Spouse Rule. Section 434(c)(1) of the Internal

Revenue Code protects an 'innocent spouse' from tax liability if certain conditions
are met:

1. A joint return was filed

2. The return contained a 'grossly erroneous' error

3. The innocent spouse establishes 'lack of knowledge 4. In light of all the

'facts and circumstances' it would be 'inequitable' to impose the tax on the
innocent spouse

Tax counsel should be consulted.

INS. Immigration and Naturalization Service, former agency under the U.S.
Department of Justice (DOJ). Handled immigration. Tasks now handled by other
agencies established under the Department of Homeland Security (DHS) with the
exception of immigration court system, still under DOJ. DHS overseas USCIS
(United States Citizenship and Immigration Services); USICE (United States
Immigraiton and Customs Enforcement; and USCBP (United States Customs and
Border Patrol). Immigration laws may impact adoption, marriage and divorce. See
http://uscis.gov/graphics/index.htm

Intact Family. A family that has not experienced a separation and/or divorce,
hence, is not broken, but intact.

Interlocutory Hearing. Any court hearing at which a pretrial order or ruling is

requested.

Interlocutory Judgment; Interlocutory Decree; Judgment Nisi. The initial

judgment of divorce. When courts grant divorces, their judgments are not final
until the expiration of a statutory 'waiting period' known as the interlocutory or
nisi period. It begins when the interlocutory judgment enters and ends upon the
'final judgment,' 'judgment absolute,' or 'final decree.' State law varies greatly in
this regard, so check with counsel.

Despite your judgment of divorce nisi or interlocutory decree, you are still
legally married and cannot remarry until the judgment becomes 'final' or
'absolute.' Also, during the interlocutory or nisi period, your spouse has the
 right to inherit from you unless a separation agreement waiving such rights
was executed. Check with counsel if you are feeling mortal.

Our misguided legislatures, in an effort to save obviously failed marriages,

require this waiting or 'warming-up' period in the highly unlikely event the
parties reconcile. We have heard of 'cooling off' periods before gun
purchases, but our lawmakers are unrealistic if they think a warming-up
period can save marriages after an interlocutory judgment. Besides, it
would be easier for parties to remarry than stop the clock on an
interlocutory judgment.

Interlocutory Order. See Temporary Order; Temporary Restraining Order

Interrogatories. See Discovery; Pretrial Discovery

Intestate; Laws of Intestacy. A person who dies without a will is said to die
intestate.

State laws of intestacy establish who inherits, and in what percentage.

Surviving spouses usually inherit the entire estate except in the case of
surviving children who are entitled to usually two thirds, while the
surviving spouse inherits the remaining one third. Rules vary from state to
state.

Investigator; Court Investigator. A person appointed by the court, usually to

investigate child-related matters, and file a report with the court.

Unlike the Guardian ad Litem, the investigator does not 'stand in the shoes'
of the minor child(ren).

IOLTA. Interest on Lawyers Trust Account, a mandatory bank account for

lawyers holding clients’ funds, including retainers. Interest is accrued on balances,
but not for the benefit of the lawyer or client. State bar organizations usually
designate a legal charity as the recipient.

Irretrievable Breakdown. The legal grounds for no fault divorce in most states.

The court must be convinced, i.e., find, that the marriage has 'irretrievably
broken down' and that there is no chance of reconciliation. If your case is
uncontested you may have to sign an affidavit stating that the marriage is
'irretrievably broken down.' It is filed along with your joint petition and
separation agreement before an uncontested, no-fault divorce is granted..
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Joint Custody. See Custody, Legal and Custody, Physical

Joint Petition. When both parties want the court to do the same thing, such as
'dissolve a marriage' due to an irretrievable breakdown (no-fault) and approve a
separation agreement (uncontested), the parties jointly request (by joint petition)
the court to grant the divorce.

Joint Property. Property held in the name of both spouses. Except in Mississippi,
legal title is usually not relevant in dividing property. Basically, one spouse can't
say, 'honey, the property is in my name, so you don't get any.'

Judgment. See Decision and Judgment

Judgment Absolute; Final Judgment. See Interlocutory Judgment; Judgment

Nisi

Judgment of Divorce; Judgment of Divorce Absolute. See Divorce Decree

Judgment Nisi. See Interlocutory Judgment; Interlocutory Decree; Judgment of

Divorce Nisi

Judicial Separation. See Legal Separation

Jurisdiction. The court's legal authority to hear your case and issue legally
enforceable orders and judgments. Usually, the court in the county where you last
lived together has jurisdiction over the divorce. If one party permanently leaves
the state, both states may have jurisdiction. Ask you lawyer about this tricky area
of jurisprudence.

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Legal Assistant. A staff member of a law office or firm, usually performing

certain clerical tasks without any training as a paralegal, but over time probably
capable of performing paralegal activities. Assistant’s time may not be billed to
the client. Compare Paralegal.

Legal Custody. See Custody--Legal

Legal Ethics. See Ethics; Legal Ethics

Legal Separation; Separate Support; Separate Maintenance. Available in
some states, a legal separation is similar to a divorce, except no divorce judgment
is granted that ends the marriage.

In response to a complaint for legal separation or separate support, the court

may provide remedies relating to property (in some states) and support.
Generally, a complaint for divorce or annulment is necessary before a court
orders a final property division. Also called judicial separation.

Lien; Spousal Lien on Marital Property. See Attachment

Lord Mansfield’s Rule. The legal presumption that any child born to a woman
during her marriage is the child of her husband; possible exception. if the husband
did not have access to the wife during the probable time of conception. A rule
enunciated by Lord Mansfield in 18th century England. The same rule followed to
some degree in American courts. In the latter part of the 20th century, the rule lost
favor in the U.S. and will continue fading because of genetic testing.

Lump Sum, Lump Sum Settlement. One time payment as opposed to a series of
payments over time or an installment or structured settlement. The lump sum may
be less than all of the payments made over time because the so-called time value
of money is taken into account, thus creating a discount. In divorce cases a lump
sum payment may be used to pay off all of the alimony obligations or may be used
to secure a discount for a spouse’s share of future income such as rents or
proceeds from an installment sale to a third party. See Structured Settlement.

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Maintenance. See Alimony

Malpractice (Legal). The improper or incompetent behavior of your attorney.

Violations of the Cannons of (Legal) Ethics often constitute legal malpractice.

Mandatory Factors (to be Considered by the Court). The factors a court must
consider before making a final decision relating to property division and alimony.
Some states also have 'discretionary factors' a court may consider. See Equitable
Distribution.

Mandatory Self-Disclosure. Court rule requiring parties to a lawsuit to provide

financial disclosure to one another within a certain period of time after suit is
commenced. No formal requests as in traditional discovery (see Discovery) where
the party seeking information must draft and serve specific requests for
information and documents using particular forms following court rules.

Marital Assets; Marital Property; Marital Estate. See Equitable Distribution

and Community Property

Marital Agreement; Marital Settlement Agreement. See Agreement

Marital Portion. A share of a pension accrued during marriage, including

inflation protection. Usually determined by multiplying the accrued benefit of the
employee’s pension by a fraction, the numerator of which is the total number of
months of the marriage, and the denominator of which is the total number of
months of the employee’s participation in the pension plan. Also refers to stock
options that vest before, during or after marriage.

Marital Tort. See Tort; Marital Tort; Domestic Tort

Marriage Certificate. The official certification (with raised seal) of your marriage
issued by a public entity.

Make sure you have an official copy with a raised seal; religious certificates
are generally unacceptable. Contact the city or town where you were
married or your state.

Market Analysis. With respect to real property, the study conducted by a real
estate broker, not an appraiser, showing value or price of a particular piece of real
estate with an analysis of similar or comparable real estate recently sold. A broker
who hopes to be engaged by the owner to list the property for sale may do the
analysis at no charge. Compare Valuation and Appraisal.

Master. See Special Master

Maternal Preference. Concept used by 20th century courts when deciding child
custody cases in favor of mothers. See Tender Years Presumption.

Maternity. A female adult’s relationship to a child; could mean gestational carrier

(surrogate mother) or biological mother (egg donor). See www.paternitynet.com

Mediation. An informal, voluntary process allowing parties to work with a neutral

third party (the 'mediator') to develop a separation agreement. An agreement
developed with a mediator is said to be a 'mediated agreement.'

Where appropriate, mediation is an excellent way to develop a separation

agreement. Remember, the process is voluntary, so if either party refuses to
 continue, the mediation is terminated. Mediation requires cooperation and
communication between the parties. You must trust each other financially
to make full disclosure of each other's financial condition and future
earnings opportunities. Each party has his or her attorney review the
agreement before it is signed.

Mediators are not marriage counselors, but may help you develop a
parenting plan. We advise our clients to go this route where appropriate, but
mediation is not suitable for everyone. Interestingly, more men are satisfied
with the result than women who tend to believe that they would have done
better before a judge.

Memorandum of Law. A legal document filed along with pleadings or other

court papers setting forth your lawyer's legal research in support of a request to the
court. Modification, Complaint for. The legal, post-divorce procedure to change or
modify a separation agreement, or the court's earlier decision and judgment.

Most states allow modification of prior agreements or decisions/judgments

based on any unanticipated 'material change of circumstance.' For example,
your child requires extraordinary medical expenses or you become
permanently disabled, and these events were unanticipated at the time of
the original judgment. Certain types of agreements, 'surviving agreements,'
are written to bar any future modification. The rules are technical and vary
among states. Public policy suggests that all child-related issues should be
modifiable. Consult your lawyer.

Motion. A written request asking or 'moving' the court to grant a temporary order,
or rule on a legal matter.

Motions are either 'contested' or, if the parties stipulate to the matter,
'uncontested.' Motions are usually heard at a special motion or ex parte
'session' of the court. Legal fees for contested motions are expensive and
the outcome is rarely certain. Therefore, when possible, you should enter
into a written stipulation to be submitted for the court's approval. The
stipulation then becomes part of the court's temporary order.

Frequently, motions request temporary orders relating to support,

maintenance of health and life insurance, and temporary custody of minor
children. Other requests relate to matters such as motions to allow
'amendment of pleadings,' 'more time to answer a complaint,' and
'continuances.' Requests for restraining orders and requests to vacate the
marital home are also made by motion.
Motion for Attachment. See Attachment

Motion for Counsel Fees Pendente Lite. See Counsel Fees Pendente Lite,
Motion for

Motion to Vacate the Marital Home. See Vacate the Marital Home, Motion to.

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National Conference of Commissioners on Uniform State Laws (NCCUSL).

Since 1892, seeks uniformity of state laws; comprised of state commissions on
uniform laws from each state, the District of Columbia, the Commonwealth of
Puerto Rico, and the U.S. Virgin Islands. Each jurisdiction determines the method
of appointment and the number of commissioners appointed. Commissioners must
be members of the bar. They serve for specific terms, and receive no salaries or
fees. No uniform law is effective until adopted by a state legislature. See
http://www.nccusl.org

Necessaries. The common law doctrine that if a person who owes another person
the duty of support and fails to support such person, he becomes liable to third
parties who provide necessaries such as the grocer and utility company to person
owed a duty of support..

The dollar amounts are limited and vary from state to state. The better
practice is to get a temporary order of support.

Negotiated Settlement; Negotiated Agreement. The parties, usually with

counsel, develop a separation agreement. These agreements are not mediated or
arbitrated. In other words, the parties, without any neutral third-party, settle their
controversy.

No-Fault Divorce. See Fault and No-Fault Divorce

Notice; Legal Notice. The procedure for informing a party that a legal action or
motion is pending before a court.

Courts normally refuse to hear complaints or motions unless proper notice

is given, but exceptions are often made for ex parte motions which do not
require notice to the opposing party. The rules of civil procedure govern
both the procedure for serving process and related time requirements. Initial
complaints must be served by sheriff or constable (in-hand service), while
 motions can usually be served either in-hand or via US mail. Parties usually
have 20 days to respond to the initial complaint and 10 days to prepare for
motions unless a copy of the motion is served in-hand (rather than by US
mail), then only 3 to 4 days notice are required. State laws vary, so check
with counsel.

Nullity of Marriage. See Annulment

Nuptial. Of, or pertaining to, marriage

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Order; Court Order; Order of the Court. A written instruction from the court
carrying the weight of law, i.e., the knowing violation of which constitutes
contempt of court.

Orders must be in writing. Many parties quote the courtroom statements of

the judge. What the judge says 'orally' may be interesting or even insightful,
but it does not carry the force of law unless in writing. Before acting or
failing to act in response to the judge's oral comments, you must consult
counsel.

Ordinary Expenses. Costs and expenses for necessities such as food, clothing and
shelter, but not including luxury items; those expenses that are typical of the
family prior to separation and divorce; may include higher priced items for certain
families accustomed to spending more on luxury items or purchasing higher priced
goods and services.

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Palimony. Payments similar to alimony made to a former co-habitator.

Paralegal. A professional in a law office or firm, not an attorney; not permitted to

give legal advice, but trained in school or on the job to review and organize
material such as financial records to comply with discovery (see Discovery) or
draft pleadings (see Pleadings) and documents, but cannot sign pleadings. Only a
licensed attorney or a pro se (see Pro Se) party is permitted to sign pleadings such
as a complaint for divorce. Paralegal’s time is usually billed at a lower hourly rate
than the attorney working with the client. Compare Legal Assistant.
Parens patrieae. The right of the state to take charge of the care and custody of
minor children or other legal incompetents when their health or safety so requires.

Parent Coordinator. See also Guardian ad Litem. Usually a mental health

professional selected by parents or the court to act as an out-of-court decision-
maker on child custody and visitation issues. The Parent Coordinator is usually
compensated by the parents. Preferably acts under a court order to make decisions
that are binding on the parents unless and until a court rules to the contrary.

Parentage. The relationship between parent and child. Sometimes used

interchangeably with paternity. See Paternity and Paternity Establishment. See
www.paternitynet.com

Parental Alienation Syndrome. A controversial theory that states some parents

intentionally cause the breakdown of a child’s relationship with the other parent,
or alienate the child. The alienating parent, according to its proponents, should be
punished by losing custody to the other parent.

Parenting Classes. A recent requirement in many states for divorcing parties with
minor children. Classes are designed to prevent undue hardship on the children by
teaching parents to love their children more than they hate one another.

Parental Kidnapping. The act of one parent illegally taking a child in violation of
court order.

The federal Parental Kidnapping Prevention Act requires states to cooperate

with each other in returning children kidnapped by a parent. The United
States, along with approximately 35 other countries, are signatories to the
Hague Convention on the Civil Aspects of International Child Abduction.
This treaty is similar to the federal law except it is limited to signatory
countries.

Parenting Schedule or Parenting Plan. See also Custody and Visitation. Terms
used by courts and lawyers since the mid-1990’s when referring to parents’ time
with minor children or sharing of custodial rights and responsibilities. Deemed
less emotionally charged than terms "custody" and "visitation."

Paternity. The relationship between a male parent and a child. Usually means the
biological ties, but can mean the legal relationship imposed by a court on a man
who has no biological ties to a child. See Parentage and Lord Mansfield’s Rule.
Compare De Facto Parent. See www.paternitynet.com
Paternity, Establishment. The determination by a court or voluntary
acknowledgment, usually by a signed declaration of paternity, that a man is the
father of a child. See www.paternitynet.com

Paternity Test. Scientific means by which the identity of a person’s (usually a

child) father is established. Includes blood grouping and genetic tests. Once
paternity is established, the child has a right to receive support and inherit from the
father. See www.paternitynet.com

Pendente Lite. Latin for 'during the litigation.' See Counsel Fees Pendente Lite,
Motion for

Pension Valuation. The determination of the value of a pension by the accrued

benefit method or the projected benefit method. The accrued benefit method
usually, but not necessarily, produces a lower value than the projected benefit
method.
See http://www.divorcenet.com/Members/pacinc/

Perjury. Perjury is knowingly lying under oath.

If a person believes he is telling the truth, but is factually incorrect, he's

neither a liar nor perjurer. If he knowingly and intentionally makes
factually incorrect statements under oath, he is both a liar and perjurer. If
the statement is not made under oath, he is merely a liar.

Clients often comment that opposing counsel is a 'liar' or 'perjurer.' If

opposing counsel makes a factually incorrect statement, it doesn't
necessarily mean he is lying. Who knows what he believes, or what his
client told him' Try to stay calm when this happens. See Courtroom
Etiquette.

Perjury may run rampant in divorce trials. Criminal prosecution for perjury
in a civil cases is virtually non-existent. One Massachusetts Family Court
judge sent cases to the district attorney ( who failed to prosecute). No one
likes being lied to, especially judges. The 'jerk' factor often decides cases.
Which party is the bigger jerk' Judges are human. They often like one side
more than the other. Point out your spouse's perjury at trial, and he'll
assume 'jerk' status.

Personal Jurisdiction. See Jurisdiction

Personal Liberty. Living and fully enjoying life, free from fear or violence
caused unnecessarily and unreasonably; free of unwarranted control by another.
Personal Property. Not real estate, houses, buildings or land. Includes, among
other things, cash, savings accounts, checking accounts, stocks, bonds, intellectual
property, jewelry, art, antiques, collectibles, and pets.

Personalty. Personal effects such as clothing and furnishings; a subset of personal

property. Sometimes described as movable property. Compare Real Property. See
Personal Property.

Petition. See Complaint and Joint Petition

Physical Custody. See Custody--Physical

Pleadings. Includes the complaint (or petition), answer, and counterclaim.

Attached to pleadings is a 'certificate of service' or 'proof of service' that

certifies how, where, and when such pleading was served on the opposing
party and whether the service was by constable, deputy sheriff, by mail, or
by 'legal notice' published in a newspaper.

PKPA. Parental Kidnapping Prevention Act of 1980, a federal law addressing

child abductions by parents.

Postnuptial Agreement. Same as prenuptial agreement, but entered during the

term of the marriage, often revising a prenuptial agreement.

If a divorce is imminent, i.e., the parties enter into a Postnuptial agreement

in anticipation of divorce, then the contract is called a Separation
Agreement or Settlement Agreement. See Agreement; Separation
Agreement; Property Settlement Agreement; Marital Agreement.

Prayer; Prayer for Relief. The request made to the court, usually at the end of a
pleading, asking for the relief sought, such as granting a divorce or ordering
financial support. For instance, you might say 'the plaintiff respectfully requests
this Honorable Court to....'

Preference, Child’s. An older child may express a preference to live with or

spend more time with a parent. Courts are not bound by the child’s preference.

Prejudice; With and Without Prejudice. The concept that what happens in court
or by stipulation of the parties will affect future proceedings. Generally, pretrial
orders are said to be without prejudice, which means that the parties have a right to
a trial on all matters, including those decided by temporary orders. In contrast,
with prejudice means that even at trial the earlier order determines the outcome.
Preliminary Hearing. Any court proceeding that occurs prior to trial.

Premarital Assets. Assets acquired before marriage. These assets usually are part
of the marital estate in equitable distribution states and are excluded from, and
constitute separate property in, community property states.

Prenuptial Agreement. A written, premarital contract dealing with death and

divorce which sets forth the rights and responsibilities of the parties upon
occurrence of these events.

Such agreements must be 'fair and reasonable' at the time entered, and 'fair
and reasonable' at the time of enforcement. The longer a marriage, the less
enforceable they become. The parties financial statements should be
attached since full disclosure is required.

Preponderance of the Evidence. See Burden of Proof. One standard of proof in a

civil case, meaning the degree of difficulty facing a litigant in proving his or her
case. Lower standard of proof than clear and convincing evidence, meaning more
probable than not that the litigant is right. Compare Clear and Convincing
Evidence.

Pretrial Conference. A meeting of all parties and counsel with the trial judge,
sometimes held in the judge's chambers.

Most states require these pretrial conferences. Counsel prepare a 'pretrial

memoranda' for the court, and the judge asks pointed questions. Most cases
settle during this conference since the parties hear, for the first time, how a
real-life judge would decide the case. A judge's general impressions and
settlement recommendations carry great weight, especially when the
pretrial judge will also try the case.

Parties are often surprised by how close they are to settling. Often the only
thing keeping them apart is their attorneys' failure to communicate with
their clients and with each other. Some lawyers never really understand
their own cases until a judge, with 5-10 minutes of preparation, explains it
to them. They are highly focused on a few trees when the forest is on fire.

Lawyers' lack of communication and their zealous but unrealistic advocacy

waste tens of millions of dollars annually.

Pretrial Discovery. See Discovery; Pretrial Discovery

Pretrial Memorandum. See Trial, Pretrial Memorandum

Pretrial Motion. See Motion

Pretrial Order. See Temporary Order; Temporary Restraining Order (TRO)

Primary Physical Custody. See Custody--Physical

Privilege. Refers to evidence based on private communications made within

legally recognized 'confidential relationships,' such as marriage, attorney-client,
patient-psychiatrist, and priest-penitent. It also includes the privilege against 'self
incrimination' which can be asserted by a party accused of adultery where adultery
is considered a crime.

Under the rules of evidence, matters are excluded, no matter how relevant
to the case, if obtained through these confidential relationships. The rules
are technical and vary state to state. Consult your lawyer.

Probate; Probate Court. Probate is the legal process of administering decedents'

estates.

In many states, family court is part of, or under the jurisdiction of, the
probate court.

Probation Officer. See Family Service Officer

Production of Documents. See Discovery; Pretrial Discovery

Professional Responsibility (Code of). See Ethics, Legal Ethics and Cannons of
(Legal) Ethics

Pro Se; Pro Se Appearance. When a party handles her own case, i.e., represents
herself, she is said to appear 'pro se.'

Parties are entitled to appear pro se, but counsel is recommended, especially
if you have significant assets or serious child-related issues. Remember,
even a lawyer who represents himself has a fool for a client.

Process. (noun). See Service; Service of Process

Procedure. See Rules of Procedure; Rules of Civil Procedure; Rules of Domestic

Relations Procedure

Property Agreement. See Agreement

Proposed Findings; Proposed Orders. A document prepared by you or your
lawyer and submitted to the court setting forth your best case scenario, i.e., how
you want the judge to find the facts and make 'conclusions of law' to decide the
case.

Protection, Order of. See Protective Order.

Protective Order. See Restraining Order and Discovery Problems.

Psychological Evaluation. Includes interviews of person(s), usually parents and

minor children involved in custody disputes, by mental health professionals. May
also include psychological testing. See Psychological Testing. Results are usually
reported in written report to the court and attorneys for the parties.

Psychological Parent. Term coined by Goldstein, Freud and Solnit, authors of

“Beyond the Best Interests of the Child” in 1973 to mean a child had only one
psychological parent, and thus, should be in the custody of that parent or was at
risk for developing an attachment disorder. Often used in latter twentieth century
custody cases as a rationale for awarding sole custody to mothers. See Attachment
Disorder and Attachment Theory.

Psychological Testing. Includes tests like the Rorschach Ink Blot Test and
Minnesota Multiphasic Personality Inventory – 2. Conducted by psychologists,
usually in family law cases to help determine child custody.

Public Records. any books, papers, maps, photographs, electronic storage media,
computer files, digitally stored material or any other information regardless of
form, which is made or received by employees of public agencies.

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Quash. See Discovery Problems

QDRO (Qualified Domestic Relations Order--pronounced `kwad-row). A

court order directed to a 'plan administrator' or 'custodian' allocating retirement
benefits between spouses.

QDROs often are used when one party, usually the husband, has a large
pension or 401K and when liquid assets are insufficient to 'even up,' i.e.,
pay cash to the party without or with smaller pension benefits. While
judicial policy is to avoid long-term entanglements, sometimes there is no
choice but to approve a QDRO.
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Real Property. Land, buildings. Immovable property. Compare Personalty and

Personal Property.

Recapture, Alimony. A federal tax rule that penalizes the party who pays
alimony, if payments are “front loaded”, meaning excess amount is paid during the
first three years. If the alimony paid in the third year decreases by more than
$15,000 from the second year or the alimony paid in the second and third years
decreases significantly from the alimony paid in the first year, the paying spouse
must include in income in the third year part of the alimony payments previously
deducted. In other words, the paying spouse’s tax bill increases and the recipient’s
decreases because he or she can deduct in the third year part of the alimony
payments he or she previously included in income.

Recrimination. If the defendant is accused of adultery, 'recrimination' is the

counterclaim when the plaintiff is accused of adultery, too.

Recusal. The disqualification of a judge because of judicial prejudice or bias.

If you believe that a judge cannot give your case a fair hearing, counsel can
file a motion asking the judge to 'recuse' himself. Unless the judge has a
personal or business relationship with your spouse, this motion will
probably fail, and can even backfire. Judges do not want to be told that they
cannot act fairly.

Rehabilitative Alimony. Short-term spousal support designed to help the

recipient 'get started' with her new life. See Alimony.

Relocation of Minor Child. See Removal.

Removal (of a minor child). The legal proceeding, usually brought by complaint
or petition, by the custodial parent to remove (move) the minor child(ren) from the
state.

The recent trend is to allow the custodial parent more flexibility in moving
out of state when there are 'real advantages' (known as the 'real advantage'
test) to the custodial parent. The theory is what's good for the parent
(usually the mother) is good for the child, i.e., in the child's best interest.
Fathers' rights groups have lobbied against this trend. Not all states use the
 'real advantage' test. We have come full circle from Victorian times when
children were the personal property of their fathers. Now children are the
personal property of their mothers. Many courts are unlikely to allow
removal if the child has a close relationship with the non-custodial parent.
Consult your attorney.

Replacement Value. Estimated price or cost of replacing an asset. Example, the

estimated cost of rebuilding a house, not necessarily the same as the cost of
acquiring or buying the house. Compare Fair Market Value.

Request for Admissions. See Discovery; Pretrial Discovery

Request for Production of Documents. See Discovery; Pretrial Discovery

Residency Requirement. Amount of time a person must reside or live in a state

before becoming eligible to file for divorce in that state. Each state has different
waiting periods; most require a minimum of 6 to 12 months.

Restraining Order. A temporary court order prohibiting a party from certain

activities. Issued in response to a motion, restraining orders often are issued to
protect marital assets and to protect against domestic violence. In many states,
violating a 'domestic restraining order' is a criminal offense.

Retainer Agreement. See Fee Agreement

Rules; Rules of Civil Procedure; Rule of Domestic Relations Procedure. The

statutory rules that govern court procedure. Courts must obey these rules.

In contrast to substantive matters covered by divorce statutes, court rules

are limited to procedure. Such matters as 'notice' requirements, service of
process, time requirements for answers and counterclaims, and discovery
are established by rules. Courts have some discretion to ignore some rules if
their enforcement would cause injustice. See Equity; Court's of Equity.

Rules of Evidence. The statutory rules governing testimony, documents, and

demonstrative materials.

In divorce, the two most encountered rules relate to hearsay ('he said, she
said),' and the marital privilege ('my husband told me...'). Clients are often
frustrated when important evidence is barred from trial. Lawyers spend
considerable time figuring out 'how to get it in.' Try not to get too angry at
the system, there is a valid reason for each rule.
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Safe Havens for Children. a federal program to make grants to states, units of
local government, and Indian tribal governments to work with nonprofit entities to
provide supervised visitation and safe visitation exchange of children in domestic
violence, child abuse, sexual assault, or stalking cases. See
http://www.ojp.usdoj.gov/vawo/laws/vawa_summary2.htm

Safe House. A residence in an undisclosed location where victims of abuse and

their minor children may reside to be safe from the abuser. Usually refers to
residences operated by not-for-profit organizations offering services and shelter to
victims and their minor children.

Same Sex Marriage. The legally recognized marriage of two women or two men,
now recognized in Massachusetts, but not by the federal government and other
states. Available to residents of Massachusetts since May 2004. Pending
legislation (April 2005) in Massachusetts may allow out-of-state same sex couples
to marry in Massachusetts. See also Civil Union.

Sanctions. Under the Rules of Procedure, courts may penalize or sanction a party
or counsel for improper behavior, such as making frivolous claims.

Usually such awards are paid to the opposing party, but don't hold your
breath. Courts are reluctant to punish obstructionist lawyering or
uncooperative parties. The divorce bar has created a lucrative cottage
industry out of obstructing justice.

Secretion of Assets. The hiding of assets

Self Incrimination; the right against. The right of the accused not to admit
criminal wrongdoing.

Most wrongful behavior is not criminal in divorce, so the right against self
incrimination cannot be asserted. Certain acts, however, such as adultery,
are still considered crimes in most states. Domestic violence and tax
cheating are also crimes. The right may be asserted in these limited
instances, but unlike criminal proceedings, the judge may draw a negative
inference from a party asserting the right against self incrimination. In other
words, the judge can assume your guilt from your assertion of the right. In
criminal cases, drawing such inferences is strictly forbidden.

Separate Maintenance. See Legal Separation

Separate Property. Property is not considered part of the marital estate. Usually
occurring in community property states, it includes property brought into the
marriage and also may include inheritance or gifts received during the marriage.

Separate Support. See Legal Separation

Separation. See Legal Separation

Separation Agreement. See Agreement

Service; Service of Process. The legal process of informing, i.e., 'giving notice,'
that a complaint or motion is pending.

The process described is a noun meaning certain pleadings served or to be

served. Process is served personally ('personal service') either in-hand or
accepted by an adult at the recipient's residence or place of business. If the
defendant cannot be located, service is by 'publication' in the local
newspaper where he last lived. Check with your attorney as rules vary from
state to state.

Settlement; Settlement Agreement. See Agreement; Separation Agreement;

Property Settlement Agreement; Marital Agreement

Shared Custody. See Custody

Shelter. See Safe House.

Single Parent Families. Usually refers to female head of household families

because most minor children continue living with mothers after the break-up of the
family.

Sole Custody. See Custody.

Special Advocate. A volunteer appointed by a court to handle matters pertaining

to children in abuse and neglect cases. May also be involved in child custody cases
between parents where abuse and neglect are evident.

Special Master. A court-appointed individual, usually an attorney, who assists the

court in moving a case forward.

Problems relating to pretrial discovery often are handled by a special master

who schedules and coordinates discovery. Such procedure is necessary
where one or both parties fail to comply with discovery requests, or when
the parties can't agree on appraisers a special master can make the selection.
 Note that the special master is not a judge -- his opinions carry weight, but
not the final word.

Spousal Lien on Marital Property. See Attachment

Spousal Support. See Alimony

Stalking. Behavior of a rejected partner after a break-up who cannot accept the
end of the relationship. May include incessant calls through the day and night,
unwanted letters and email and other conduct aimed at maintaining contact the
stalker hopes will effectuate a reconciliation. The stalker’s behavior may be
annoying and intrusive, and can cause fear and lead to harm to the departing
partner. Many states have anti-stalking statutes. See
http://www.ojp.usdoj.gov/ovc/publications/bulletins/legalseries/bulletin1/welcome
.html

State. As used in PKPA, meaning the 50 states, District of Columbia, Puerto Rico
and the Territories of the United States.

State Court. In the United States, courts established and governed by States and
operating under state law. Not established by Congress. Family law cases are
usually reserved for state court, but increasingly, the federal courts have been used
to decide child abduction cases, that is, whether the child should be returned to the
country of habitual residence (see Habitual Residence), but not to decide which
party wins custody. See Hague Convention.

Status Conference. A meeting before trial with the judge assigned to a case for
the purpose of updating the court on any progress the parties may have made in
resolving any issues. Often used as an opportunity for the judge to comment
informally on the parties’ positions. Judicial feedback at the status conference can
lead to partial or complete settlement.

Stay; Stay of Proceedings. The stopping of a judicial proceeding. A 'stay of

execution' stops the enforcement of a court order.

Generally, stays are granted by appeals courts, but appeals are rare in
divorce cases.

Stay-Away Order. Meaning an order issued by a court requiring a party to stay

away from another person, possibly including terms to stay away from that
person’s home or work and to maintain a minimum distance from the person if
seen in public.
Stipulation; Stipulated Agreement. A written agreement intended to be entered
as a court order upon motion of the parties.

Courts like and usually approve reasonable stipulations. They save judicial
time. Parties can stipulate to almost anything related to the case. In fact, a
separation agreement is nothing more than a comprehensive stipulation. If
the parties agree on some matters, but disagree on others, they can stipulate
to those issues and have the court decide outstanding issues.

Strike; Motion to Strike. Upon motion of a party, a court may remove certain
pleadings and evidence from the docket upon finding such material totally
irrelevant, scandalous, or without proper notice.

Stock Options. An asset or property interest that is divisible between divorcing

spouses. A widely popular form of deferred compensation in the late 1990’s, but
loosing popularity as laws (2005) make stock options more expensive for
employers. An option gives the employee the right to purchase company stock at a
certain price (strike price). The employee hopes the company does well, raising
the market price of its stock above the strike price. Once the employee exercises
the option, that is, purchases the stock at a bargain price, the employee sells the
stock and realizes a profit. If the strike price is above the then current market price,
the options are described as being “under water” or worthless.

Structured Settlement. Instead of one large payment, a series of smaller

payments paid over time, including interest. Total series of payments add up to
more than the agreed upon settlement or lump sum because interest has been
added to compensate the recipient for the delayed payment.

Subpoena; Subpoena Duces Tecum. A court order (or order of a notary public in
some states) to attend a legal proceeding such as a trial or deposition. If documents
also are requested, the subpoena is called a subpoena duces tecum, Latin for 'bring
with you.' See also Discovery; Pretrial Discovery.

Success Fee. Legal fees added to hourly billings if, in the lawyer's opinion, he
deserves a bonus based on his performance.

Obviously, outside the practice of law, you are unlikely to find an employee
or consultant unilaterally deciding his own compensation. Even chairmen
of large corporations don't set their own compensation levels. Think of your
local supermarket cashier: 'Well, today the produce is exceptionally fresh
and you didn't have to wait, so that's an extra $10.00.' If your lawyer wants
a success fee, see if he'll give you a 'failure discount.' Ask whether he'll
 agree to reduce his fee if in your sole opinion his performance was
unsatisfactory.

While some highly-regarded lawyers charge success fees, we believe it

raises ethical questions, especially since counsel knows you, your psyche,
and your finances intimately! Your state's Cannons of Ethics may address
this issue.

Summary Judgment. A procedural rule that allows judges to enter judgments

without trial, generally used when only questions of law, and not fact, are at issue.

Summons. The court's official notice to the defendant that he must respond to the
attached complaint or petition.

The complaint must be served with the summons for the defendant to know
the particulars of the claim against him. A sheriff or other party authorized
to serve process completes a 'proof of service' or 'return of service' that is
filed with the court.

Supervision; Supervised Visitation. See Visitation

Surviving Agreement. See Agreement and Modification; Complaint for

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Temporary Assistance for Needy Families (TANF). Successor aid program

established by the federal government in 1996 to replace Aid to Families with
Dependent Children (AFDC), also known as Welfare.

Temporary Order, Temporary Restraining Order (TRO). A pretrial order, i.e.,

interlocutory order, compelling a party to do something, or prohibiting him from
certain activities.

Upon motion, courts may issue temporary orders at any time from the
initial filing of a case to time of trial. Temporary restraining orders (TROs)
are issued to preserve marital assets, such as restricting borrowing and
spending. They also are used to restrain parties, usually the husband, from
returning to the marital home (see Vacate; Motion to Vacate the Marital
Home) or harassing the spouse.

Temporary Support. An interlocutory order of support entered before trial, i.e.,

an order issued while a case is pending. See Temporary Order.
Tenancy by the Entirety. The manner in which jointly owned real estate is
usually held by married couples. The surviving spouse, if the parties were married
at time of death, becomes the sole owner automatically.

Tender Years Presumption. Concept used by courts from early 20th century
until 1970’s when deciding child custody cases. Presumption favored mothers as
custodial parents of young children or children of tender years, not adolescents.
Compare Best Interests of the Child.

Testimony. Any statement made under oath.

Time Standards. Court rules establishing deadlines after suit is filed for the
completion or occurrence of certain phases of litigation such as discovery (see
Discovery), pretrial conferences (see Pretrial Conferences), and trials. See
www.mass.gov/courts/courtsandjudges/
courts/probateandfamilycourt/timestandards.pdf and
www.ncsconline.org/D_Research/ TCPS/Measures/me

Tort; Marital Tort; Domestic Tort. A tort is any wrongful act which creates
legal liability against the defendant or 'tortfeaser.'

Some states allow spouses to bring 'tort' actions in addition to divorce

actions. Tort claims include assault and battery, fraud, and intentional
interference with a person's job or business. Domestic tort claims are rare,
as most divorce cases cover all matters related to the marriage.

Trafficking. Trafficking of persons, especially into the sex trade, slavery, and
slavery-like conditions.

Transitional Housing Assistance for Victims of Domestic Violence. Federal

grant money available under the Violence against Women Act of 2000
administered through the Department of Health and Human Services. See
http://www.ojp.usdoj.gov/vawo/laws/vawa_summary2.htm . See also Safe House
and Shelter.

Trial; Hearing on the Merits; Evidentiary Hearing. A formal proceeding

before a judge who hears testimony under the rules of evidence and makes a final
decision relating to the matters presented. All such decisions are with prejudice,
since they are final adjudications of the matters presented.

In contrast, motions are less formal without adherence to the rules of

evidence. They do not result in final adjudication, but only temporary
orders. Therefore, they are often without prejudice.
Trial Memoranda; Pretrial Memoranda. A 'sales' document filed with the
court, setting forth each party's theory of the case, what they want, and why they
should get it.

Trustee Process. A court order to a third party, such as a banker, freezing an

account or property.

In effect, the third party becomes your trustee. He is responsible to you and
the court for the safekeeping of certain property, such as money or the
contents of a safe deposit box. A 'writ of trustee process' is issued by the
court in response to a motion and an affidavit of 'irreparable harm' filed in
support of the motion.

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UCCJEA. Uniform Child Custody Jurisdiction and Enforcement Act. A so-called

uniform law regarding custody and visitation issues when dealing with parties and
children from different states. If using UCCJEA, refer to the version enacted in
your state.

UIFSA. Uniform Interstate Family Support Act. A so-called uniform law

regarding child support and alimony when dealing with parties from different
states. Each States is free to enact its own laws and even its own version of
UIFSA. If using UIFSA, refer to the version enacted in your state.

Unexercised Interest. Relative to stock options, for example, meaning the

employee has the right, but has not yet purchased or exercised the options.

Uniform Parentage Act of 2000. Integrates the Uniform Parentage Act (1973), as
revised by this version, along with provisions covered by the Uniform Putative
and Unknown Fathers Act (1988), and the Uniform Status of Children of Assisted
Conception Act (1988), into a single Act of the National Conference of
Commissioners on Uniform State Laws. See National Conference of
Commissioners on Uniform State Laws (NCCUSL).

Unvested Interest. Relative to stock options, for example, meaning the employee
spouse does not yet own, but has the right to “earn” the options, usually by
remaining with the company for a certain period of time. Relative to a trust,
meaning there is no present or future interest guaranteed. Compare Vested
Interest.
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VAWA. See Violence against Women Act of 1994 and Violence against Women
Act of 2000.

Vacate the Marital Home, Motion to. A request to the court made by motion
asking that one party, usually the husband, be forced to vacate the marital home.

Unless you are under the threat of violence, this is a radical request that sets
the stage for a contentious divorce. While your spouse may well deserve
shabby treatment, you deserve to get what's yours with the least effort.
Don't complicate things unnecessarily.

Vacating Order. Act or order of a court terminating or rescinding a prior order,

such as the case of a party who seeks and obtains a stay-away order (see Stay-
Away Order) that is later terminated after the court hears testimony from the
person ordered to stay away and from the alleged victim who requested the stay-
away order in the first instance.

Valuation. Process in divorce cases of assigning a value or worth. Value assigned

by agreement of the parties who may rely on appraisers or a judge if the parties
fail to agree. Judges rely on evidence offered by experts, and possibly the owner-
spouse, by oral testimony, usually supported by written appraisals. See also
Daubert Rule.

Venue; Change of Venue. The location of the court, in contrast to jurisdiction,

which determines whether a court has legal authority to hear a case. Venue is
where a court, with proper jurisdiction, will hear the case. When a case is
transferred to a new location within the same jurisdiction (county or state), the
transfer is called a change of venue.

Usually, the county court in the county where the parties last lived together
is the proper venue.

Vested Interest. Relative to stock options, for example, meaning the employee
spouse now owns and is entitled to exercise or purchase. Relative to a trust,
meaning the beneficiary has a guaranteed present or future interest. A vested
interest, even if a future interest, not presently owned, may affect the court’s
decision on alimony and a division of assets in some states. Compare Unexercised
Interest.
Viatical Value. As applied to term life insurance, the value or sale price of term
life insurance to a third party. What the owner of term life insurance policy
receives as a percentage of the death benefit upon sale to a third party. In general,
the younger the insured, the lower the value.

Violence against Women Act of 1994 and Violence against Women Act of
2000. Federal legislation and funding of programs to prevent violence against
women and to prosecute abusers. See
http://www.ojp.usdoj.gov/vawo/regulations.htm and
http://www.ojp.usdoj.gov/vawo/laws/vawa_summary2.htm.

Visitation, Grandparents. See www.aarp.org/life/grandparents. In the 1970’s the

concept of grandparent visitation rights swept the country, only to be eroded at the
turn of the century by the Troxel v. Granville case (2000) in the U.S. Supreme
Court, and later cases decided in state courts around the United States. The courts
are severely restricting or eliminating grandparent visitation in favor of the
parents’ right to limit or prevent access to their children.

Visitation; Supervised Visitation. Pursuant to stipulation, agreement, or court

order, visits of unemancipated children with their non-custodial parent. Visits are
supervised by a responsible adult when the non-custodial parent is accused of
child abuse or neglect.

Take out your calendar and think it through. The schedule should be
flexible, but consistent enough so you can make plans.

Visitation Center. A location where parent and child visit under supervised
conditions, sometimes for a fee paid by the visiting parent who may be accused of
sexual or other abusive behavior toward the child.

Voluntary Acknowledgment. The act of a man who signs a written declaration

that he is the father of the child in question. A voluntary act, not ordered by a
court. The declaration usually follows certain formal requirements established by
state law. See www.paternitynet.com

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Wage Assignment; Wage Attachment. See Garnishment

Welfare. See Aid to Families with Dependent Children (AFDC) and Temporary
Assistance for Needy Families (TANF).
With and Without Prejudice. See Prejudice; With and Without Prejudice

White Marriage. A marriage without sex

Writ of Attachment. See Attachment; Motion for Attachment

Writ Ne Exeat (Arrest). An arrest warrant granted in emergencies

This is an extraordinary remedy used in extraordinary circumstances. For

example, it is used to prevent the removal of assets or minor child. When
such removal is imminent, the court orders the sheriff to arrest and bring
the defendant to court.

Wrongful Removal or Retention (of a minor child). See Hague Convention.

The breach or violation of another person’s custody rights under the laws of the
state where the child was habitually resident immediately before the removal or
retention and where custody rights were being exercised or would have been if the
removal or retention had not occurred.