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DIVORCE
DICTIONARY
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Arbitration:
An alternative in which parties agree to have a neutral person
make decisions in matters relating to their case. The parties
can stipulate to make the arbitrators decisions binding. Usually
the decision cannot be appealed.
Action:
A lawsuit or proceeding in a court of law.
Award:
A decision by a court in a lawsuit to compensate a person in some
fashion.
Attorney
of record:
An attorney that is officially representing a party in a proceeding.
An attorney of record is generally authorized to perform certain
functions on behalf of a party, including receive service of papers.
Arrearages:
The difference between the amount of spousal maintenance or child
support paid and the amount required by a court order.
Appellant:
The person who brings the appeal.
Appeal:
When one person disagrees with a decision made by a trial judge
and asks the Court of Appeals or the Supreme Court to review that
decision. This is a formal legal proceeding.
Answer:
A written response to a petition issued by the Respondent, usually
accompanied by a counter petition setting forth the basis for
the petition and the relief that is sought by the Respondent.
Affidavit:
A written statement made under oath, often as part of a divorce
proceeding. In a divorce proceeding, Affidavits usually accompany
motions and are used to avoid having to appear in court personally
to testify.
Alternate
Dispute Resolution (ADR):
A phrase used to describe methods of resolving divorce disputes
rather than going to court. Also sometimes referred to as “ADR”
or “low conflict resolution”.
Allegations:
The claims or charges against the other person which are made
in a lawsuit.
Admission
of Service:
At dissolution, a paper signed by a party admitting that he or
she received the Petition for Dissolution.
Assignment:
The transfer of a right or interest in property from one person
to another.
Alimony:
See Spousal maintenance.
Annulment:
A legal decree that makes a marriage null and void. Under Minnesota
law, a legal annulment (which is different than a religious annulment)
is extremely difficult to obtain and usually requires that one
of the parties lacked the capacity to consent to the marriage.
Brief:
A written presentation of a party’s position.
Collaborative
Law:
Collaborative law is a way of practicing law whereby the attorneys
for both of the parties in a family dispute agree to assist them
in resolving conflict using cooperative strategies rather than
adversarial techniques and litigation. Early non-adversarial participation
by the attorneys allows them to use attributes of good lawyering
not greatly utilized in the usual adversarial proceedings. The
attributes include the use of analysis and reasoning to solve
problems, generation of options, and creation of a positive context
for settlement.
Custody
Evaluation:
A third party investigates the circumstances surrounding the custody
of one or more children for purposes of recommending a custodial
arrangement for the children.
Counter-Petition:
A petition filed by the responding party, or respondent, stating
the relief that they are seeking.
Court Services
Evaluator:
An individual who makes the child custody evaluation and who is
appointed by a county court services agency.
Consensual
Special Magistrate:
An alternative in which the parties choose to have a third person
decide their case in the same manner as if a judge decided it.
The decisions are binding and can be appealed.
Contested
Divorce:
One party opposes the other because he or she disagrees with the
other party on some of the issues of the divorce such as property,
child custody, child support, spousal maintenance, assumption
of debts, etc.
Common
Law Marriage:
A marriage in which there has been no formal ceremony or marriage
license. A judicially recognized marriage in some states.
Custody:
The legal right and responsibility awarded by the Court for the
care of the child.
Cause of
Action:
The legal theories or basis upon which a lawsuit is based.
Claim:
A charge by one person against another.
Civil Court:
A court that presides over non-criminal matters.
Child Support
Guidelines:
The amount of child support to be paid under normal circumstances
when one parent has primary physical custody, according to a schedule
established by the State.
Custodial
Parent:
When physical custody language is used, the parent who has physical
custody of a child at any particular time.
Child Support:
The amount of money that one parent pays to the other parent to
help pay for the everyday needs of the children, including housing,
food, and clothing.
Child (Minor
Child):
An individual under 18 years of age, an individual who is under
20 years of age and who is still attending high school, or a child
who, by reason of physical or mental condition is incapable of
self support.
Cohabitation:
The act of living with someone, generally if sex is shared.
Divorce
decree:
The court order that grants the divorce and outlines the determination
of the issues in the dissolution. Also referred to as a final
decree or the Findings of Fact, Conclusion of Law, Order to Judgment
and Judgment and Decree.
Divorce:
A legal judgment that severs the marriage of two people and restores
them to the status of single persons. Also call a dissolution
of marriage.
Dissolution
of Marriage:
The legal term used to describe a divorce. An action in which
a party petitions the court to end the marital relationship.
Discovery:
The process by which one party obtains information from the other
party through things such as Interrogatories, Request for the
Production of documents and depositions.
Deposition:
When a party or witness is asked questions under oath in the presence
of a court reporter who prepares a transcript of the questions
and the answers. A deposition is usually conducted in a lawyer’s
office without a judge present. A court stenographer takes down
everything that is said and later types it up in a transcript
to be reviewed by the parties and their attorneys.
Defendant:
The person who defends against a lawsuit brought against him or
her by another. The Defendant may also be called the Respondent.
Default
alternative:
An alternative that occurs by default if another alternative is
put in its place. In divorce proceedings, a court trial is the
default alternative.
Emancipation:
An act by which a parent relinquishes their right to custody and
are relieved of their duty to support the child. Emancipation
can occur when a child marries, is inducted into military service,
by court order, or based upon the best interests of the child
when the child reaches the appropriate age.
Equitable
Distribution:
The division of property acquired during the marriage that may
include marital debts.
Formal
Discovery:
Information that is gathered through the use of formal methods
such as submitting interrogatories, requests for the production
of documents, or conducting depositions. This is in contrast to
informal discovery in which the parties and/or their attorneys
agree to voluntarily exchange whatever information is requested
by letter or in some other informal fashion.
Financial
Neutral:
A person with a financial background, usually a certified public
accountant, who provides unbiased assistance to the parties and
their attorneys for the purpose of reaching a resolution on disputed
issues.
Guardian
ad Litem:
A person assigned to protect the specific interests of the children.
Grounds:
Legally sufficient reasons why a person is entitled to a divorce.
Almost all states today are no fault states in which it is not
necessary to state grounds for a divorce.
Hearing:
Any proceeding before a court where testimony is given or arguments
are heard.
Hold-harmless:
A phrase used to describe an agreement by which one person agrees
to assume full liability for an obligation and protect another
from any loss or expense based on that obligation.
Interrogatory:
Written questions asked by one party to the opposing party. The
opposing party must answer the questions under oath.
Impasse:
A point at which further progress does not seem possible.
Joint
Legal Custody:
A form of custody where both parents have equal rights and responsibilities,
including the right to participate in major decisions determining
the child’s up-bringing including education, health care,
and religious training.
Jurisdiction:
The power or authority of a court to rule in a particular case.
A court must have jurisdiction over both the subject matter of
the case, and the people involved in the dispute, in order to
have the authority to hear a case and make binding decisions.
Judgment
and Decree:
The document that actually grants the divorce and which generally
identifies the ruling or agreement on other issues such as custody,
child support, spousal maintenance, and property division.
Judgment:
A ruling or court order.
Joint property:
Property that is held or titled in the name of more than one person.
Joint Petition
for dissolution:
A petition in which both parties are petitioning for dissolution
at the same time rather than having one petitioner and one respondent.
Joint Physical
Custody:
A form of custody of minor children in which the parents share
the actual physical custody of the child. The time spent living
with each individual parent is structured between the parties.
Joint physical custody does not require that there be an equal
sharing of time.
Lump-sum
alimony:
Spousal support that is made in a single payment or is a fixed
amount, but paid in specific installments.
Legal Custody:
The right to determine the child’s upbringing including education,
health care, and religious training.
Legal Separation:
A court determination of rights and responsibilities of a husband
and wife without dissolving the marriage.
Low conflict
alternatives:
Alternatives for dispute resolution that are designed to reduce
conflict. Also referred to as non-adversarial alternatives.
Legal Consultant:
Someone who consults with a client and provides legal advice and
legal services but is not the client’s retained attorney.
Multi-disciplinary
team:
A group of professionals from different areas of practice such
as law, mental health, accountants, who are working together as
a team to provide assistance to a client or clients.
Marital
Termination Agreement:
Sometimes referred to as a stipulation. A complete agreement reached
between the parties that spells out decisions made regarding all
issues in an action for dissolution of marriage. These may include
the issues of custody, child support, spousal maintenance, property,
and debts.
Med/Arb:
Short for “Mediation/Arbitration.” A mixture of mediation
and arbitration in which the parties begin mediation and agree
that, if the issues are not resolved through mediation, the mediator
can act as an arbitrator and make binding decisions.
Mediation:
A process in which an impartial third party facilitates an agreement
between two or more persons.
Minor child:
See Child.
Motion:
A request that one party makes for some type of action or decision
to be made by the Court.
Motion
hearing:
A hearing before a judge or referee in which the judge hears arguments
but no testimony.
Marital
Property:
All property acquired during the course of the marriage regardless
of who owns it or who has title to it. Includes property such
as houses, real estate, pensions, stocks, bonds, and household
goods. Marital property does not generally include property that
was acquired by either spouse prior to the marriage.
Non-adversarial
alternative:
General term used to describe alternatives to more traditional
divorce process methods. They are designed to avoid court and
other adversarial methods. Also referred to as low-conflict alternatives
or alternate dispute resolution (ADR).
Non-custodial
Parent:
In a situation where one parent has primary physical custody,
the other parent is deemed to be the non-custodial parent, since
that parent does not have the children half of the time.
No-Fault
Divorce:
A type of divorce which may be granted without the necessity of
showing that either spouse was guilty of some form of marital
misconduct.
Neutral:
A general term used to describe any individual or expert who works
in a neutral or unbiased capacity in an effort to help the parties
resolve issues.
Non-marital
property:
Term used to describe separate property in some states that provide
for the equitable distribution of property. Generally, non-marital
property consists of property acquired prior to a marriage and
property acquired by individual gift or inheritance either before
or during a marriage.
Order:
A court’s official ruling on some matter before it. Generally
court order will be in writing and signed by the judge.
Order for
Protection:
An order issued in a domestic abuse action where one party is
ordered to refrain from contact with another party.
Pleading:
Any formal written document filed with a court which requests
action by the court. Includes complaints, petitions, answers to
the complaint, responses to a petition, motions, etc.
Parental
Consultant:
A child psychologist who works with the parties as a consultant
in an attempt to mediate issues of a case involving children.
Where necessary, they may make binding decisions relating to parenting
issues.
Private
judge:
General term for any neutral party privately hired to render certain
judgments at the request of both parties. See also: Arbitrator.
Primary
Caretaker:
The parent who provides the majority of the day-to-day care for
a minor child.
Prenuptial
Agreement:
A written contract entered into by a couple who intends to marry
but want to establish, before the marriage, their rights in the
event of death or divorce during marriage. Such a document generally
limits a spouse’s rights to property, support, or inheritance
upon divorce.
Post dissolution
proceedings:
Term used to describe differences that arise between two divorced
parties after the marriage is dissolved.
Plaintiff:
The person who initiates a lawsuit by filing a complaint with
the court. The plaintiff is also called the Petitioner.
Physical
Custody:
The determination of where the child will spend most of his or
her time. Also said to have the care, custody and control of the
daily activities of the child. Physical custody considers the
routine daily care and control, and residence of the child.
Petitioner:
The person who files a divorce petition in court and initiates
the divorce action. In some cases both parties can choose to become
Co-petitioners.
Petition:
The title given to the first document filed in an action for divorce.
The petition sets out the facts of the case and the allegations
against the other spouse and requests that the court grant the
divorce or dissolution. It also states, in very general terms,
what the petitioner is requesting in relief from the court.
Perjury:
The act of lying under oath.
Pretrial
Conference:
A pretrial conference is a meeting, usually in a courthouse setting,
in which the parties and their attorneys meet for the purpose
of trying to obtain a settlement. The conference is normally moderated
by a judge or referee who is handling the matter. If the case
cannot be settled and the matter gets set for trial, a pretrial
order is issued.
Parenting
Time Expeditor:
A neutral person who is asked to interpret, clarify and address
issues that are not covered by a court order or to enforce an
existing parenting plan agreement and order. A parenting plan
expeditor can be used to resolve a single dispute or can stay
working with the parents over a period of time.
Pro Se:
A party which is representing himself or herself in the proceedings.
Party:
A person directly involved in a lawsuit; either a plaintiff/petitioner
or a defendant/respondent.
QDRO
:
Qualified Domestic Relations Order. A separate order often used
to divide a pension or a retirement plan owned by a spouse.
Retainer:
A payment made to an attorney to secure his or her services. The
retainer is placed in a trust account and, as the attorney works,
the charges are deducted from the retainer until the money is
used up. After the money is used up the attorney would usually
bill on a weekly or monthly basis, or would ask for a new retainer.
Retainer
Agreement:
A contract signed by an attorney and a client, setting forth the
billing arrangements to be instituted between the lawyer and the
client.
Retained
Attorney:
An attorney who has entered into a retainer agreement with the
client and has therefore become the client’s attorney of
record
Request
for the Production of Documents:
A written request issued from one party to the other, asking that
certain documents be produced to allow them to obtain information
necessary for resolving divorce issues.
Referee:
A judicial officer, essentially used in Ramsey and Hennepin counties,
who presides in a manner of a judge, over a specific area such
as family law. Decisions by the referee are subject to possible
review by the judge.
Response:
The formal document filed by a respondent in answer to the allegations
in a petition. This is also called an answer.
Residence:
The place where a party has established a permanent home from
which the party has no present intention of moving.
Spousal
Maintenance:
Payment of support for one spouse provided by the other spouse
from the future income or earnings of the paying spouse. Payments
received are usually taxable to the spouse who receives the maintenance,
and deductible by the spouse who pays.
Stipulation:
See Marital Termination Agreement.
Summons:
A document which is served upon (delivered to) a person who is
named as a defendant or respondent in a lawsuit. The summons notifies
the person that the lawsuit has been filed against him or her
and tells them that they have a certain time limit in which to
file an answer or response in reply. The summons accompanies the
Petition and tells the other party the following crucial facts:
1.) They have 30 days to submit an Answer to the Petition. 2.)
That neither party may harass the other party during the divorce
proceedings. 3.) That neither party may change insurance coverage
during the divorce proceedings. 4.) That neither party may sell
assets while the divorce is pending, (with certain noted exceptions).
5.) That both parties are encouraged to pursue mediation.
Sole Custody:
Also referred to as primary custody. When one parent has the primary
decision making authority or has the children with them during
most of the time. Contrasted with joint custody.
Settlement
Conference:
Another name for a pre-hearing conference where the parties get
together and attempt a settlement of all issues in their case.
Settlement
Agreement:
The written version of a settlement that resolves certain issues.
It is generally a valid contract.
Settlement:
An agreement that resolves certain disputed issues.
Service
of Process:
The actual act of presenting the defendant or respondent in a
lawsuit with a summons notifying him or her of the lawsuit. Also
generally includes providing the defendant or respondent with
a copy of the actual complaint or petition in the lawsuit. The
service of process is done either personally or through the mail.
Subpoena:
A document which is served upon (delivered to) a person who is
not directly involved in a lawsuit, requesting that he or she
appear in court to give testimony.
Transcript:
The written presentation of testimony given at trial or at a deposition.
Temporary
Agreement:
An agreement on how to handle temporary issues until a marriage
dissolution is finalized.
Temporary
Order:
An order by the court, which is only intended to last until the
divorce is finalized.
Uncontested
divorce:
A divorce proceeding in which there is no dispute as to any of
the legal issues involved. The lack of dispute may be because
the other spouse is missing, refuses to participate in the proceeding,
or agrees with the other spouse on all issues.
Visitation
Expeditor:
See Parenting Time Expeditor.
Visitation:
The time that the non-custodial parent spends with the child during
time when one parent is said to have primary or sole physical
custody. In situations where custody language is not used, such
as a parenting plan, different terms are used to describe access
to the child.
Waiver:
A written document that relinquishes a person’s rights.
Waiver
of counsel:
A document signed by a party waiving their right to have an attorney
review and sign certain papers on their behalf.
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