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Divorce Strategy: Tactics for a Civil Financial Divorce
Words Frequently Used by Divorce Lawyers and CourtsAs if the divorce process wasn't already confusing enough, the divorce legal system has to make it even more confusing for the lay person. They use mysterious words and phrases that leave most nonlawyers struggling for comprehension and understanding. This excerpt from the glossary of Divorce Strategy should shed some light on just a few of the more commonly used legal terms and phrases. ALIMONY court ordered payments made to provide support for a spouse or ex-spouse. Also called maintenance, separate maintenance or spousal support. ALLEGATION a statement, usually in a pleading, which asserts a fact or a belief about an issue which the party making the statement is ready to prove. An averment is a positive statement or allegation of facts. APPEAL a procedure wherein a litigant can go to a higher court to ask for a review of the ruling of a lower court. It is not a retrial or new trial. The appellate court reviews a transcript, the trial exhibits and written briefs filed by the parties. Oral argument may be permitted. The appeals court reviews the trial court judge's ruling taking into consideration the facts, the law and the judge's application of the law. ARBITRATION when litigants, by agreement, submit their dispute to an impartial person who is not a judge. That person, the arbitrator, hears testimony and evidence to reach a decision based upon the evidence and the law. The decision is usually binding on the parties. In divorces the decision is customarily approved by a judge and the arbitrator is required to have special training or certification. The litigants usually pay a flat fee, hourly charge or daily charge to the arbitrator. BAILIFF a court attendant who has the authority of keeping order in the courtroom. CLEAN HANDS DOCTRINE a legal concept that litigants in an equitable action must be free from unfair conduct in order to obtain aid from the court. COMMINGLING the act of mixing money or property that is separate in nature with money or property that is marital or community. COMMUNITY PROPERTY all property that a husband and wife acquire by their joint efforts during their marriage. Not all states have adopted the theory of community property. Those states have adopted the theory of equitable distribution. EQUITABLE DISTRIBUTION a statutory means of distributing marital property to a divorcing couple. The distribution does not necessarily have to be equal and is determined by factors and considerations described in the state statutes. Not all states are equitable distribution states. See also community property. EVIDENCE proof presented at a trial that proves or disproves a fact. It may be testimony, documents or objects. It differs from an allegation in that an allegation is a statement of fact that needs to be proved or disproved. There is a set of rules called the Rules of Evidence which define whether the proof is admissible or not in a court of law. GUARDIAN AD LITEM a person, usually a lawyer, who is appointed by the court to prosecute or defend a person who is legally unable to do so. This person is commonly used to represent children in a divorce if custody is hotly contested or if there are allegations of domestic violence or child abuse. The fees of the Guardian ad Litem are usually paid by the parents. The Guardian ad Litem is not a representative or advocate for either parent. In some states the Guardian ad Litem may make a recommendation to the court regarding custody. LEGAL SEPARATION a court order or written agreement describing the terms under which two married persons will abide while living apart and remaining married. In some courts, a legal separation is only by order of a court. A decree of legal separation may be converted to a divorce in some situations, depending upon state law. MEDIATION a process in which a disinterested third person, the mediator, assists a divorcing couple in reaching an agreement regarding their divorce. The mediator is usually, but not necessarily, someone trained in mediation. The mediator is not an advocate for either spouse and should not take sides. If an agreement is reached through the use of a mediator, each spouse may still want to have a lawyer review the agreement. NO-FAULT DIVORCE a divorce granted with neither party having to prove the other is guilty of marital misconduct. No grounds are necessary, just an allegation that the marriage is irretrievably broken and cannot be preserved. RETAINER an advance paid to a lawyer or expert witness. As the lawyer works on your case, he or she will bill time against the retainer. SEPARATE PROPERTY property that is not marital or community property. Usually owned prior to the marriage or received by inheritance or gift during the marriage. Also called nonmarital property. WAGE WITHHOLDING a plan in which support is withheld from a payor spouse's or ex- spouse's income by an employer. The money which is collected by the employer is paid to the other spouse, usually for child support or maintenance. It is also called an income withholding. Those are just a few of the words you may hear from lawyers or judges. You may find that they will soon become words that you frequently use during a divorce. Book Overview Message Boards and LinksVisit the Message Boards and Recommended Links for more information and resources about divorce. Domain Name for Sale |
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