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Glossary of Terms

Glossary of Terms

Action – A lawsuit, including a Divorce.

Adultery – The legal term used when describing a sexual relationship outside of a marriage. California is a “no fault” state making adultery an invalid ground for a divorce.

Alimony – Payments made to a separated or divorced spouse.  These payments are required by a divorce decree or separation agreement. Also known as Spousal Support or maintenance payments.

Alternate Dispute Resolution (ADR) – Ways of making decisions and resolving disputes, other than litigation (contested hearings); these alternatives include: Collaborative Law, Mediation, Annulment, Parenting Coordination, and Arbitration.

Ante nuptial Agreement – See Premarital Agreement

ATROS – Automatic Temporary Restraining Order. Those ATROS are effective against the filing party (the Petitioner) upon signing the Divorce Petition, and effective upon the served party (the Respondent) upon service. The ATROS are used in Divorce Cases to restrain the parties from:

1. Removing minor children from California without the prior written consent of the other party or a prior written order of the Court.

2. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or any other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child/children;

3. Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the Court, except in the usual course of business or for the necessities of life.

The ATROs advise the parties: You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay an attorney to help you or to pay Court costs.

Case Management Conference – Usually the first appearance in court by the parties and their attorneys after the “petition” and “response” has been filed.

Cash out Distribution – A distribution in which the property has been sold and the proceeds are divided between the parties, or when money is given by one spouse to the other in exchange for keeping property.

Child Custody – This refers to rights regarding a child. There are two different types of custody: legal custody and physical custody- and there are also different variations of custody – sole custody and joint custody. The most common form of custody is Joint Legal Custody. This is where the children live with one parent (residential custodian) while the other parent has visitation rights. With Joint Legal Custody, both parents make the decisions on behalf of the child/children concerning health, education, religion, and general welfare.

Child Specialist – An experienced, licensed therapist with specific education and training in the expected behaviors, stages, challenges and tasks of a developing child. They work with the child/ children to address specific emotional and practical day-to-day needs as they relate to the divorce. A Child Representative also assists in designing parenting plans that address the defined needs of the child/ children as they go through the restructuring of their family.

Child Support – A set amount of money paid by the non-custodial parent to help support their children after a divorce.

Child Visitation – Child visitation, often defined in a parenting plan, can take a variety of forms or schedules; two of the most common are “reasonable visitation” which leaves it up to the parents to decide visitation dates and times. The other is “scheduled visitation” which is a fixed schedule. Visitation arrangements normally include some if not all of the following basic provisions:

  1. Alternate weekend visitation with the non-custodial parent, including “three-day holidays”
  2. Mid-week visitation with the non-custodial parent
  3. Sharing of the child during periods of school recess – winter, spring and summer (often split 50-50)
  4. New Year’s Eve, Easter, Rosh Hashanah, Yom Kippur, Thanksgiving, and Christmas are the kinds of holidays spent with one parent one year, the other parent the next
  5. Mother’s Day is spent with the mother, Father’s Day with the father
  6. Parents alternate years on the child’s birthday
  7. Open and frequent telephone contact by the parent who does not have physical custody of the child
  8. Exchange of a few days of visitation here and there, as mutually agreed, without the need for a modification of the court order

In some emergency situations, the other parent might be required to take temporary physical custody of the child/ children.

Collaborative Attorney – An individual trained in the practice of Collaborative Law to aid couples in the dissolution (divorce) process. The Attorney addresses the legal issues that a couple faces in seeking a divorce. Through problem solving and negotiations the collaborative attorney helps the parties draft agreements in the spirit of cooperation.

Collaborative Law – It consists of two clients and their respective attorneys working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues. All negotiations take place in “four-way” settlement meetings that both clients and both lawyers attend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, both collaborative lawyers are disqualified from further participation. Each client has built-in legal advice and advocacy during negotiations, and each lawyer’s job includes guiding the client toward reasonable resolutions. The legal advice is an integral part of the process. However, the clients make all of the decisions. The lawyers usually prepare and file all papers required for the divorce.

Community Property – A legal term used to define property ownership between a husband and wife. Community property is jointly owned and is part of the marital estate

Contested Divorce – A contested divorce is one in which the husband and wife cannot come to an agreement on one or several issues related to the termination of their marriage. Where the partners cannot come to an agreement, even with the aid of their respective counsels, the couple must then take their issue(s) to a court to be decided.

Conventional Divorce – In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional divorce spouses often come to view each other as adversaries, and the divorce may be a battleground. The resulting conflicts take an immense toll on emotions–especially the children’s.

Co Parenting Programs – See Divorce Process- Co Parenting Classes

Custody Agreement – The purpose of the custody agreement is to reach an understanding on how to raise and care for a child/children with both parents sharing in the responsibilities and maintaining involvement in the day-to-day life of the child. For the custody agreement to work it is essential that both parents be flexible. If parents can’t come to an agreement on custody, then they will need to be prepared for a custody battle.

Custody Battle – If proceeding in a custody battle or dispute, here’s what to expect:

  • If the court feels that neither parent is acting in the best interest of the child a guardian ad leim may be appointed to help in making decisions on the behalf of the child.
  • Depending on the age of the children, their wishes may or may not be taken into consideration.
  • Unless the situation is so obvious that one parent should have custodial rights over the other (such as in drug abuse or physical abuse) a court-ordered independent evaluation will probably be ordered. The evaluation is usually done by a court-appointed mental health professional such as a psychologist or a social worker. A thorough evaluation can include the following: interviews with all the parties involved (individually and possibly with the parent and child together); psychological testing of both parents and the child; review of school records and or conversations with teachers; review of medical records and developmental history; review of legal records, such as the papers filed regarding the divorce, any possible domestic disputes and any criminal records of either party involved. Be prepared for the evaluation to take at least four to six weeks if not longer.

Custody Mediation – Before the court can make orders regarding custody or visitation; state law requires the parents to attempt mediation.

Dissolution – Meaning, “to end” or “dissolve”. Often used interchangeably with the word “divorce” as in “dissolution of marriage”.

Distribution in Kind – A distribution of actual property. For example furniture being spit between parties, instead of splitting the proceeds from selling the furniture

Divorce – Divorce is a legislatively created, judicially administered process that legally terminates a marriage no longer considered viable by one or both of the spouses. Divorce is also known as dissolution of marriage. Traditionally, divorce was fault-based. In other words, there was an “innocent or injured” party and a party that had done “wrong” with the “innocent” party being able to obtain relief or a divorce. In the 1970s California became a “no-fault” state.

Divorce Certificate – The divorce certificate contains basic information about the husband and wife, and the date and place the marriage ended.

Divorce Decree – A court’s formal order granting a termination of marriage. If a divorce case goes to trial and the judge issues a judgment, the judgment is confirmed when the decree is signed and dated by the judge and court clerk.

Divorce Filing – A divorce starts with the filing of a “Petition”. In California these are FL100 (married) or FL103 (domestic partners). In California you Petition for Divorce, and receive a Judgment. The filing spouse is referred to as the Petitioner. If the spouses can agree on the terms of divorce, including grounds for divorce, division of marital property, etc. then they may be able to expedite the process by filing a formal settlement agreement with the court. If they cannot agree on some or all of the terms of the divorce, then they will have to file the appropriate documents with the court so that a hearing can be held to resolve the issues.

Divorce Litigation – Litigation is a legal term meaning ‘carrying out a lawsuit.’  The word ‘litigation’ comes from the Latin word ‘litigious meaning ‘to dispute, quarrel, strive”.

Divorce Order – This is the final order made by a court in a divorce case. On taking effect, a divorce order legally ends a marriage.

Divorce Process – The participants control the actual divorce process. Many people do not realize that not all divorces must end in a contested courtroom proceeding. Generally, once a couple has embarked on a contested divorce process it is important for the couple to consult with a lawyer. The length of a case may depend on county that the case is filed in. It often depends on how crowded the court docket may be and may easily take a year or more. The Divorce Process may include the following stages: Summons and Petition, Answer and Counter Petition, Temporary Hearing, Mediation, Co Parenting Classes, Advance Case Review, Discovery, Experts, Settlement, Settlement Conference/Pretrial, Trial.

Divorce Process: Summons – The Summons is a document announcing that a divorce or legal separation action is being commenced. In California, that document also indicates that from that point forward neither party may dispose of marital assets, change insurance coverage or modify any other significant holdings except for the necessities of life. See ATROS

Divorce Process: Petition – The Petition has two parts. The first part is a statement which sets out basic facts such as the identities of the parties, whether they have children and what assets they may hold. The second part of the Petition seeks relief such as an award of custody, spousal support or child support and a division of assets and debts.

Divorce Process: Answer & Counter Petition – In California’s divorce process, the opposing party has thirty (30) days to submit an answer to the divorce petition. The Answer is very simply the opposing party’s statement of facts and request for relief. Often the service of an Answer is waived. This is often done to save the parties the cost of an additional filing fee should the matter be settled. However, if the opposing party does not grant a waiver or extension, and an answer is not filed within thirty (30) days, the original party may seek a default. A default means that the original moving party may request the relief requested in their petition without opposition. Late answers are often accepted since Courts prefer determining cases on their merits rather than by default.

Divorce Process: Temporary Hearing – A temporary hearing may also be called a Pendente Lite Hearing. Either party may schedule these hearings by filing a Motion supported by an affidavit. Temporary/ Pendente Lite hearings are designed to resolve issues while the divorce is pending such as who will have:

  • Temporary child custody
  • Temporary spousal/ child support
  • Where the parties are going to reside pending the resolution of the case
  • Protection from harassment and domestic violence
  • Injunctions against financial improprieties (ATROS)
  • Use of assets

Divorce Process: Mediation – Many courts require the parties to attempt to mediate their disputes before the matter is submitted to the Court. One exception to this rule may be where domestic abuse has occurred. Mediation may occur between the parties of with attorneys present. Mediation means that the parties visit with a qualified neutral that will attempt to get them to resolve their differences. In mediation, the neutral is not an advocate and will not provide legal advice. Most discussions that occur in mediation are not admissible in Court.

Divorce Process: Co-Parenting Classes – Many counties have a policy that requires parents to attend co-parenting classes where minor children are involved. The goal is to teach parents how to minimize the divorce’s impact on the children. In most cases, parents don’t have to attend these classes together.

Divorce Process: Advance Case Review/ Case Management Conference – In such a hearing, the parties meet with the Judge assigned to the case or a referee to discuss the issues, or what discovery may be necessary. This is the parties’ first chance to resolve the case or a portion of the case.

Divorce Process: Discovery – Discovery refers to the “investigation” phase of the divorce process. It is primarily dedicated to identifying the contested issues, a determination of assets, income and debt of the parties. This exchange of information can be conducted informally with the parties agreeing to freely exchange the information or, formally, through the submission of formal documents that require answers under oath.

Divorce Process: Experts – Experts are often employed to determine certain facts. Those experts may be jointly agreed upon by the parties, which can save on the cost of having individual experts testify at trial. However, where that is not possible, each side may hire an expert to contest an issue and require their testimony at trial. Common experts include:

  • Custody evaluators
  • Financial planners to determine future economic circumstances
  • Business evaluators to value businesses/ forensic accountants
  • Real estate appraisers to value real estate
  • Personal property appraiser to value furnishings and other assets (generally an auctioneer experienced in home goods)
  • Vocational evaluator to determine earning capacity
  • Psychologists to testify to mental health issues

Divorce Process: Settlement – A divorce or legal separation case may be resolved at any time the parties come to an agreement on the issues. In such cases, the parties would sign a Marital Settlement Agreement or some other form of stipulation resolving their issues. This can occur right up to the point of trial.

Divorce Process: Settlement Conference/Pretrial – Settlement or pretrial conferences are scheduled by the Court. This may also be referred to as a (SOC- Settlement Officer Conference) In such conferences, the Court requires each party to submit a pretrial statement of the case and issues. In such hearings, the Judge, or a neutral attorney, will meet with the lawyers and/or parties to discuss the issues and to make settlement recommendations.

Divorce Process: Trial – If the spouses are unable to settle the case, it will go to trial. In California it’s a trial by Judge. At trial each party tells their side to the judge. This happens through testimony, the testimony of other witnesses, and documents called exhibits. At trial, the Petitioner presents their case first. They call their witnesses who are subject to cross-examination by the opposing party. When the Petitioner rests their case, the Respondent presents their own case with witnesses and evidence, each subject to cross-examination by the opposing party.

Equitable Distribution – The legal concept for how marital property is to be divided in a divorce. The concept seeks to divide property in a fair and equitable manner.

Ex Parte Hearing – A court hearing taking place without notice being given to your spouse. (This occurs most often in Domestic Violence situations)

Ex Parte Orders – These are Court Orders made with only one spouse’s information known to the judge and no notice is given to the other party to present evidence.

Family Court – A legal court convened to decide matters and make orders in relation to family law, such as termination of marriage and custody of children.

Family Law – An area of the law that deals with family-related issues and domestic relations including, but not limited to:

  • The nature of marriage, civil unions, and domestic partnerships;
  • Issues arising during marriage, including spousal abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction
  • The termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsibility orders (child custody, visitation, and child support awards).

Family Law Facilitator Act (FLFA) – This act is designed to provide a speedy, conflict-reducing system for resolving issues of annulment, spousal support, child support/ custody, domestic violence, and health insurance for families that cannot afford legal representation. Each county must maintain an office available for this assistance.

Guardian ad litem – Guardians ad litem are often appointed in divorce cases or in parenting time disputes to represent the interests of the minor children. The kinds of people appointed as a guardian ad litem vary ranging from volunteers to social workers to attorneys to others with the appropriate qualifications. The two divorcing parents are usually responsible for paying the fees of the guardian ad litem, even though the guardian ad litem is not responsible to them. The guardian ad litem’s only job is to represent the minor children’s best interests.

Irreconcilable Differences – A nonspecific ground on which spouses may obtain a divorce in California.

Joint Legal Custody – Where both parents equally share custody decision-making rights over the child’s life.

Legal Custody – refers to the right as a parent to make decisions about a child’s health, well being and education.  A parent with legal custody can make decisions about schooling, religion, and medical care, for example.

Marital Property – Property that is considered by law to be owned by both parties.

Marital Settlement Agreement – A Marital Settlement Agreement is a written document that outlines the divorcing spouses’ rights and agreements regarding property, support and children. All forms are signed by both spouses and witnessed by a notary public. The issues that must be resolved by the spouses and outlined in the Marital Settlement Agreement include:

  • Division of assets and other property
  • Repayment of debt and monies owed to creditors
  • Alimony, child support, custody, and visitation rights

Motion – A formal written request for a judge to take certain action

Mediation – A method of resolving disputes, in which a trained, neutral person (the mediator) helps the parties work out the solution for themselves. The mediator cannot provide either party legal advice or be an advocate for either side. If there are lawyers for each party, they may or may not be present at the mediation sessions, but if they are not present, then the parties can consult them between mediation sessions. When there’s an agreement, the mediator may prepare a draft of the settlement terms for review and editing by both parties and their lawyers.

Mediator – A neutral, impartial person who is trained in negotiation, conflict resolution and communication skills. The mediator does not represent any party or take sides, nor does he/she act as an attorney, judge, coach or therapist. He/she explains the mediation process to the parties, and assists divorcing couples to clarify issues, concerns, interests, needs and values. The mediator may bring in or refer various professionals as specific needs arise.

No Fault Divorce – “No fault” divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. California is a no fault state. There is a minimal six (6) month period parties need to wait before obtaining a divorce. However, the divorce process can continue during that six months time.

Paralegal – An individual who helps a couple represent themselves in the dissolution of their marriage in a simple uncontested divorce situation. A paralegal can do all the processing of the paperwork throughout the divorce process. If a couple chooses to go through the mediation or collaborative process, a paralegal can also file the appropriate forms to complete the divorce.

Physical Custody – This refers to the right as a parent to have the child living in his or her home. Some judges will award joint physical custody to both parents when the child spends significant amounts of time with both parents.  Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.

Pleading – A written paper filed in a lawsuit expressing a party’s position. This can be in response to a question or a complaint.

Premarital Agreement – A written, legal contract signed by the parties prior to their marriage. This legal contract spells out what property each person owns, and how it will be divided in the event of marital dissolution.

Qualified Domestic Relations Order (QDRO) – A court ruling dividing a pension as part of the assets.

Quasi Community Property – the property acquired by one party in another state that would have been community property if acquired in California.

Separation – The terms “divorce” and “separation’ are often incorrectly used interchangeably. A separation is when marriage partners sever their relationship with the intent of ending the marriage. Separation does not have much legal effect in and of itself. **Check with an attorney or other legal professionals to clarify effect of separation on asset and debt accumulations.

  • Trial separation. When a couple lives apart for a test period, to decide whether or not to separate permanently, it’s called a trial separation. Even if the spouses don’t get back together, the assets they accumulate and debts they incur during the trial period are usually considered marital property. This type of separation is usually not legally recognized, but is instead a specific period in a couple’s relationship.
  • Living apart. Spouses who no longer reside in the same dwelling are said to be living apart. In some states, living apart without intending to reunite changes the spouses’ property rights. For example, some states consider property accumulated and debts incurred while living apart to be the separate property or debt of the person who accumulated or incurred it. In other states, property is joint unless and until a divorce complaint is filed in court. Also in some states, couples must live apart for a certain period of time before they are permitted to file for a no-fault divorce.
  • Permanent separation. When a couple decides to permanently split up, it’s often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart.  In California, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them. However, debts that happen after separation and before divorce are usually joint debts if they are incurred for certain necessities, such as to provide for the children or maintain the marital home. Again, a couple’s decision to permanently separate may not be considered a legal one unless one party files for legal separation instead of divorce.
  • Legal separation. A legal separation results when the parties separate and a court rules on the division of property, alimony, child support, custody, and visitation — but does not grant a divorce. This isn’t very common, but there are situations where spouses don’t want to divorce for religious, financial, or personal reasons, but do want the certainty of a court order that says they’re separated and addresses all the same issues that would be decided in a divorce.

Subpoena – A legal document notifying a witness that he/ she must appear at a particular place and time to give testimony.

Subpoena duces tecum – A subpoena requiring the recipient to bring documents or other items to court when they testify.

Uncontested Divorce – A hearing in which both parties are in agreement on all issues.

Wage and Earning Assignment Order – A court order requiring the employer of the person paying support to deduct payments directly from the employee’s paycheck.

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