Basic Glossary Of Legal Terms Used In A Divorce Case
Navigating through a divorce without understanding the terms used could lead to serious misunderstandings. Of course, we don’t recommend you embark on such a journey without a lawyer. Unfortunately, many people going through a divorce have never had to deal with any of the legal terms lawyers and judges tend to use every day. Therefore , the purpose of this section is to help you become more aware of some of the common words and phrases with which you will likely come into contact during your divorce. We will not discuss all divorce-related terms, but hope that the terms included in our glossary will be of assistance to you. This is particularly true for those who have no previous experience with the legal system.
Divorce Vocabulary: The Basic Terms & Definitions
Divorce is a difficult process that tends to come with its own "language." With many terms relating to divorce being used interchangeably and referring to different aspects of the procedure, this can lead to unnecessary confusion and misunderstanding. Focusing strictly on legal terminology, it’s important to understand the following concepts and how they factor into the proceedings ahead:
Petitioner: The petitioner is the individual who files for divorce. In many cases, the party that decides to go through with the process is the one eager to end the marriage. Divorces are filed in the civil court where the person seeking the divorce has resided for at least 10 days preceding the filing.
Respondent: The respondent is the party receiving the divorce papers. The respondent has several days to petition the court with an option of intervention.
Grounds for divorce: Grounds for divorce refers to the legal reason for which a couple is divorcing. In most places, you only need one ground to file for divorce, however, there are two categories of grounds—fault and no fault. In most modern-day states, you need to have grounds for divorce, even in no-fault divorce. For instance, in Texas, you can file for a no-fault divorce but you will need to cite inconsolable differences as a reason. Ground for divorce enables the judge to grant your petition for absolute divorce.
Understanding The Basics: Property Division Terminology
In the context of divorce, property division terminology can become particularly important. Perhaps the most important words and phrases to understand in the realm of divorce are those pertaining to the categorization of your marital assets.
Most U.S. states will classify property as belonging to one of two primary categories: marital versus separate property. Your former spouse will likely wish to receive any property belonging to your marital estate, and you’ll want the same in return. Since marital property is everything acquired during the marriage (with few exceptions), it’s important to know what it includes and what it excludes.
For the most part, separate property includes:
• assets you received before the marriage
• assets that were gifted to you during the marriage
• assets that were passed on to you during the marriage through inheritance
• assets acquired with assets belonging to your separate estate
Several states, including Texas and New Mexico, adhere to the "community property" model. In these places, all income-generating assets obtained by either spouse during the marriage are classified as community property. Community property laws generally dictate an equal split between spouses. If you and your spouse have been married for a significant amount of time and have substantial community property, you may be able to negotiate an agreement that awards you a larger share of non-income producing assets belonging to your separate estate.
Terminology Used In Custody and Support Agreements
Custody is often the hardest hit in any divorce. After spending time with young children for a number of years, to suddenly be apart from them more than they are with you is extremely difficult for everyone. Schedules, holiday plans and just day to day communication become very difficult to deal with. The same is true for all other family members who are used to seeing and interacting with the children on a regular basis.
In Minnesota, there are two components to a custody determination: Physical custody is simply that – where the children will live. Parenting Time, on the other hand, is the amount of time the parent will have the children and the schedule, whether it is a week on; week off schedule, or something more creative, it is up to the parents to agree upon. If the parents cannot agree, the courts can make that determination for you.
Within the realm of child custody, there are many terms. One of the most important is "the Custodial Parent." This is the parent who has the children at all times, or the parent that has the most time with the children. The other parent is then the "Non-Custodial" parent and will need to rely heavily on the custodial parent for communication, financial obligation and change of schedule reasons.
Here is a list of some other important terms used when referring to child support and custody matters:
"Joint Custody" means that both parties are active and very involved with the children and each other. Many times, when parents request "Joint Custody," they really mean they want a "Parenting Time" designation. This does not mean that the parties must live together; it means mutual respect.
"Child Support Guidelines" is the percent of income that will be paid by the non-custodial parent based on the Minnesota Child Support Guidelines and the MN Child Support Guidelines Worksheet. When parents earn different incomes, it is important to express the Child Support in Net amounts, or the amount received by the custodial parent after taxes. The guidelines take both parents incomes into account.
"Child Support "is determined by determining each parents percentage of income after deductions are made. These deductions include the tax dependency exemption for the children, plus the federal and state tax. This is very general, as each case is different.
"Child Care Support" are expenses that are incurred as a result of caring for the children. The Minnesota Child Support Guidelines Worksheet includes a line item for Child Care. These expenses include, but are not limited to daycare, after school care and summer school care.
"Medical Support" is simply the cost of insurance for the children – health insurance, dental insurance and other physical well being insurance. The Minnesota Child Support Guidelines Worksheet includes a line for Medical Support also.
Basic Terminology Used In A Spousal Support Or Alimony Agreement
Many people have their own opinion about the meaning of the terms spousal support, alimony, and "alimony pendente lite." They may be surprised to learn that there is a difference in the list below. It is good to understand the language while getting your arms around what to expect. Keep in mind that in the U.S. you will probably hear the terms used interchangeably and not as strictly defined as this since the definitions may change based on the State you are in.
Spousal Support/Spousal Maintenance – In Pennsylvania, this is financial support for one spouse during the divorce proceedings that occurs before money is actually received. Payments are made from one party to the action to the other party. These payments can be made to your attorney for payment to the other party. Unlike Alimony Pendente Lite from Florida, this term is not limited to the support of a spouse (there are support obligations to children and other family members), though it is important to note that it is most commonly used in Massachusetts and Connecticut and is referred to as spousal maintenance in other states like Pennsylvania and New Jersey.
Alimony Pendente Lite – This is a motion that is filed with the court in which one spouse asks the court to order the other spouse to pay temporary support while the divorce is pending. "Pendente Litem" means "pending Litigation." Here in Florida, Alimony Pendente Lite terminates on the final hearing date.
Alimony – The legal obligation of a spouse to provide financial support to the other spouse after a divorce. In Massachusetts, Connecticut and Pennsylvania, alimony is the term used for support and is not paid to the attorneys of the spouses while the divorce is pending.
Rehabilitative Alimony – Alimony for a specific period of time with the intent of allowing the recipient time to rehabilitate him or herself so as to become self-sustaining. Rehabilitative Alimony is awarded for a shorter duration than Permanent Alimony or Long-Term Alimony. While rehabilitative alimony is generally taxable to the recipient and tax deductible to the payor, in some jurisdictions , rehabilitative alimony is still not always taxable or deductible. It has been recognized that a court can award Rehabilitative Alimony where the recipient does not have to attend college in order to become self-sustaining. When determining how long to award rehabilitative alimony, courts in some cases have been known to take into account the time it takes a dependant spouse to complete a program offering training for vocational skills. In some states, rehabilitative alimony terminates on the death of either spouse or upon the remarriage or cohabitation of the recipient.
Permanent Alimony – This is generally intended to provide for the dependent spouse and will provide for an indefinite term, such as "until death," "until either party remarries or enjoys a supportive relationship with another," "until either part dies or either party remarries," or "until either party dies or either party remarries or until further order of the court," depending on the state you are in. Permanent alimony is transitional in nature and generally not awarded for more than half the length of the marriage. Permanent alimony is often appropriate in marriages lasting more than ten years, and is intended to allow the recipient to maintain a lifestyle reasonably comparable to that enjoyed during the marriage.
Permanent alimony is usually taxable to the recipient and tax deductible to the paying spouse. Permanent alimony terminates upon the death of either party and may terminate upon the remarriage of the recipient spouse or cohabitation with a person with whom the recipient is involved in a supportive relationship. In some states like Pennsylvania, permanent alimony terminates automatically upon the remarriage of the recipient or the recipient entering into a relationship that is similar to marriage. In Florida, however, permanent alimony would only terminate upon cohabitation if the payer can provide evidence that they are financially responsible for both the recipient and their new partner.
Coercive Alimony – This is an award in which a spouse is required to pay a certain amount of money to his or her ex spouse or ex partner based on clear and convincing evidence that the spouse was coerced into signing a waiver of his or her right to spousal support. (Pennsylvania)
Preparation & Use Of Legal Pleadings, Documents, Forms etc
Before the dissolution of marriage is completed, several legal documents must be filed with the court and other parties. The first document is the Petition for Dissolution of Marriage, sometimes called a Petition for Divorce. This document asks the court to dissolve the marriage between the spouses. An action is commenced by filing the Petition with the Court. There is also something known as a Petition For Simplified Dissolution of Marriage. This is an option for certain married couples that meet the criteria set out in Illinois law. The filing spouse is sometimes referred to as the Petitioner against the other spouse, who is sometimes referred to as the Respondent. It should also be noted that all references to husband or wife, or ex-husband or ex-wife, includes references to wives and ex-wives, and husbands and ex-husbands as well.
Another important document is known as a summons. The summons alerts the Respondent to the initiation of the dissolution proceeding. The summons is issued by the Clerk of the Circuit Court of the county in which the Petition is filed. When the summons is served and the Respondent appears, there is no need for the marital settlement agreement to be presented to the judge. The judge can proceed to the entry of the divorce judgment without asking the spouse not before the court. In most cases, a spouse will not have to appear in court if he or she has filed a written agreement or answered the petition.
Once the divorce goes through and the parties have reached a settlement, there is a Marital Settlement Agreement. This is a document that you, through your lawyer, present to the court that lists all of the agreements that you and your spouse have reached during the divorce proceedings. Once the court ratifies the agreement, it becomes a court order and is enforceable.
While the court can divide your property with or without a written agreement, the order would be unappealable only if the parties’ sign the written Marital Settlement Agreement. That is why you are told to not go through the court process on your own or without an attorney. The risk of arbitrarily separating from your spouse and then agreeing to the terms of the divorce is much too great.
Conclusion
In summary, becoming familiar with the essential divorce legal terminology can make the process more manageable and less overwhelming. By taking the time to learn the basic terminology, you will be better equipped to navigate the complex world of divorce and to communicate effectively with your attorney and other professionals involved in your case.
While this glossary provides a starting point for understanding the common terms used in divorce proceedings, it is essential to remember that each divorce case is unique . To fully grasp the intricacies of your situation, seeking professional legal advice is crucial. An experienced attorney can provide tailored guidance and support that will help you make informed decisions throughout the divorce process.
Remaining engaged and proactive during your divorce will not only empower you to face the challenges ahead but also ensure that you are equipped with the tools and knowledge necessary to successfully navigate the complex legal landscape.