Definitions
This is the dry stuff. But it’s important. The legal process will be far easier to comprehend if you understand the commonly used legal phrases. This is much like learning a foreign language. The words are strange at first, but once you know them it will be much easier to communicate with your lawyer, and your comprehension will vastly improve. We will go through the most frequently used terms here. We will add terms and phrases with each section.
Petition for Divorce – This is the name of the lawsuit filed with the Court that starts the process. There are varying names, depending on the state where it is filed. In Florida, as an example, it is called a Petition for Dissolution of Marriage. Whatever it is called in your state, it refers to that initial paper filed with the Clerk and assigned a case number. It identifies the categories of relief being sought, such as child support, time sharing, alimony, division of assets and liabilities.
Service of Process – This is the term for getting copies of the petition and related filings to the other party. Sometimes the papers are hand delivered by a sheriff officer, or person authorized to deliver summons. If the other party already has a lawyer, it is common for the lawyer to accept the papers on behalf of the client. Once “served” there is a time limit on when to respond. 20 days is common. If no response is filed, then a default can be entered. Not filing a response tells the Court there is no objection to the relief requested in the petition.
Answer / counterclaim/ counter-petition – The answer is the paper filed with the Court that responds to, or “answers” the individual paragraphs in the petition. Many paragraphs will be “admitted.” As an example, each party may want the Court to divide assets, or set time sharing schedules for children. The responding party also often files a counter-petition to identify what relief that party wants from the Court. It is the same thing as a petition.
Jurisdiction – This concept defines what court, in which state, has authority over the parties and over the issues. Every state has residency requirements, meaning one party needs to live in that state for a certain period of time before the State has authority. It is not uncommon for two states to have a basis for jurisdiction. When that occurs, hearings will be held to determine which state has the strongest set of facts to exercise jurisdiction. A state can have jurisdiction over a person that doesn’t live in that state if there are certain ties or contacts.
Venue– This is the county where the case is filed.
Contested divorce v. uncontested divorce – This one is simple. It’s “contested” as long as there is any issue to be resolved. Its “uncontested” as soon as there is a signed settlement agreement, requiring no further involvement of the Court except to approve the agreement, and enter a final judgment dissolving the marriage.
Pleadings – those papers filed in a court case.
Grounds – the legal basis required to dissolve the marriage. Historically, grounds required fault. Now, the grounds in most states center on the marriage being broken beyond repair, or irretrievably broken.
Legal separation – a legal fiction in most states. It arose in a time of history when one needed fault to get divorced. A period of living apart became a “ground.” It is all but eliminated in most states. Like pregnancy, you are married, or not. There is no other classification.
Prenuptial agreement – a contract signed before the marriage that defines the rights and responsibilities upon death or divorce. Various state laws define what is required for a valid agreement. Some degree of financial disclosure, meaning you tell your fiancé all that you own and all that you owe and how much you make, is generally required in all states.
Post nuptial agreement – a contract signed after the marriage that defines rights and responsibilities upon death or divorce. These agreements are more scrutinized by the courts than prenuptial agreements for fair dealing and adequate financial disclosure. Once you are married, the court considers you have a fiduciary obligation to your spouse to treat her/him fairly.
Discovery – this is the process of gathering information, or “discovering” facts. Most people don’t know of their own financial facts, and even less about their spouse’s financial facts. This is not because we are dumb. Rather, it is because the divorce requires us to put real numbers and values on things we need not value in our everyday lives. Discovery includes several forms, such as financial affidavits, depositions, written questions or interrogatories, requests for document production, and subpoenas to third parties that may have relevant information. Discovery is a crucial part of the divorce process, and we will spend much more time on this later.
Deposition – A form of discovery that involves the lawyer asking questions, and the witness giving answers, under oath. The questions and answers are transcribed by a court reporter. The witness can be one party, or many other people with information about any issue.
Temporary Relief – A hearing before a judge or magistrate, held while the case is pending, and usually early. The ruling will be in effect until final settlement or trial; it is temporary. The topics can include who lives in the marital home, time sharing for children, payment of alimony and child support, and maintaining health and life insurance. Any issue that requires a short-term resolution can be addressed until the Court has sufficient time and knowledge to rule on a final basis. These hearings are usually limited in time (30 to 60 mins), so the topics that can be covered are limited by time restraints.
Mediation – This is a process to explore settlement, generally with a third person to serve as the mediator, or intermediary. Both parties, and generally their lawyers, meet at one location. Sometimes everyone starts together in the same room. Other times the parties start in separate rooms and never see each other the entire time. The mediator serves as the go-between, and shuffles offers and counteroffers between the participants This process can occur at any time, either before the case is filed, up to the trial time. Multiple mediation conferences can occur as facts are developed, and as attitudes become more conciliatory. This is a useful tool to help parties solve their case on their own, without the Court dictating the outcome through a trial.
Equitable Distribution – a common phrase used for identifying, valuing and dividing up marital assets and liabilities. It’s similar in concept to community property.
MSA – the ultimate goal! It stands for Marital Settlement Agreement. It’s a contract by any other name. Once signed, it sets forth all the rights and responsibilities of the parties. In most states, a MSA is not a valid contract unless in writing and signed by both parties.
Parenting Plan – a separate agreement, or contract, that addresses children issues. It typically includes shared parenting / joint parenting, time sharing schedules, and other details designed for your family. Most often, the parents agree to the Parenting Plan and the Court usually approves it. If the parents cannot agree, then the Court will enter its own Parenting Plan without the consent or agreement of the parents.
Alimony / Spousal Support– Money paid from one spouse to the other for support. This obligation arises when one spouse makes more money than the other, and a financial contribution is necessary to provide reasonable living expenses. There are two parts to alimony: how much is paid each month, and for how long? The duration of payments can run from just the short time the case is pending, known as temporary alimony, to the long term permanent, periodic payments for life. There are various forms in between. Each case is very fact specific.
Child Support-Payments made from one parent to the other to contribute to the cost of raising a child. Support also includes contributions for health insurance, out of pocket health expenses, and after school care. It can also include private school, extraordinary child expenses, and life insurance, all depending on the family and the combined income of the parents. Child support cannot be waived, in any state. It is considered money to benefit the child.
Trial – A proceeding before a judge that addresses all unresolved issues. Each side presents testimony and offers exhibits. Sometimes trials are held to resolve all issues; sometimes only one or two issues remain in dispute. Unlike Perry Mason, there should be no surprises on issues, facts or positions. Each side has had the chance to develop their case, and by time of trial, each side is familiar with the other side’s position.
Final Judgment – The legal paper signed by the judge that officially ends the marriage. It comes after a trial, or after submitting a MSA where the judge needs to approve only the agreement and dissolve the marriage.