Divorce Terms 2017-09-27T22:06:59+00:00

Below is an alphabetical list of legal terms commonly used in divorce in California:

Affidavit: A written statement of facts by which you swear the statement written in the affidavit is true.

Alimony: In California, it is referred to as spousal support rather than alimony. It is payments that one spouse may be ordered by the court to pay the other spouse for support as a result of the divorce. The purpose of spousal support is to ensure economic fairness in divorce.

Annulment: In California, an annulment is referred to as a nullity of marriage. In contrast to an action for divorce, grounds for a nullity of marriage is always based on something that pre-dates the marriage stopping the marriage from realization under the law.

Attorney-Client Privilege: This privilege applies in judicial proceedings in which the attorney is either a witness or is required to produce evidence regarding the client. Only the client can allow his or her attorney to disclose the substance of their communications. The purpose is to allow open and candid communications between the attorney and the client.

Child Support: Child support is the amount of money that a court will order one or both parents to pay every month to help support their child. California uses a statewide formula to reach a child support amount. It is referred to as the “guidelines calculation,” which takes into account both parents income, the higher earner’s monthly disposable income, how many children are involved, how much time each parent spends with the children, whether there is support of children from other relationships, health insurance expenses, and so on.

Child Support Guidelines: These are State guidelines that require one parent to pay the other parent child support based on a calculation and a percentage of their total income. The Child Support Guidelines are based on factors such as the income of each parent, daycare costs, medical coverage, custody arrangements and several other factors. Representation by an experienced and knowledgeable attorney can ensure that you are not receiving too little support or paying too much in support.

Child Support Guidelines Worksheet: This is the general form that is referred to and filled out in order to calculate the child support guidelines that is required in all divorce cases involving children

Collaborative Law: This is an alternative solution to litigation and has the same qualities of mediation. However, unlike mediation, in which only the two spouses meet with the neutral mediator, this process includes the parties and each parties’ collaboratively trained attorneys and a neutral professional facilitator. Often described as a “team” approach, this process is voluntary and requires the commitment of both parties and their collaborative attorneys to resolve conflicts. The parties and their collaborative attorneys sign an agreement that, in the event the process breaks down, neither attorney for the parties shall engage in any litigation thereafter. In that situation, each party would need to engage separate litigation counsel and proceed as a contested matter.

Community Property: This means your property acquired prior to your marriage is not up for division at the time of divorce. The community property is then divided equally according to the total fair market value of all your assets and obligations.

Complaint for Divorce: It is the initial step in filing for a divorce. It is a court from that you or your attorney fills out and files with the Probate and Family Court that has jurisdiction over the case.

Contested Divorce: A contested divorce is one in which the parties cannot agree to the terms of the divorce. This disagreement can relate to aspects like child custody, child support, division of assets, distribution of debts, and alimony.

Counterclaim: A counterclaim to your spouse’s complaint for divorce would essentially serve as your own complaint for divorce. Since a counterclaim acts as your own complaint, it communicates to the court that you also want the divorce. You can file on the same grounds your spouse did or chose to use different grounds of your own.

Custody: The two types of custody arrangements available to divorcing parents in California are “legal custody” and “physical custody.” The court will give these arrangements either solely to one parent or jointly to both. Physical custody means the physical care and supervision of the child. Legal custody refers to who has the ability to make important decisions about the child’s upbringing, like educational and medical decisions.The laws in California favor both joint physical and legal custody when both parents can agree to it.

Deposition/Depositions: are part of the divorce discovery process, which is the process used to gather facts about the case. In a deposition, the other spouse’s lawyer will ask a wide range of questions relating to the case, while a court reporter records both the question and answer. Once a party has answered a particular question during a deposition that party is bound by the answer.

Discovery: this is the stage where the parties exchange three years of tax returns, bank and investment accounts, any financial applications, last four paystubs, and dental and health insurance information. It is the formal way in which attorneys attempt to discover all the facts that are relevant to the case and prior to the trial or final hearing.

Divorce Agreement: A divorce agreement is a written document that essentially memorializes any agreements reached between divorcing, or separating, spouses as to child custody, child support, spousal support, and the division of property. This agreement may often be referred to as a separation agreement.

Divorce: Divorce is the legal process for dissolving a marriage. California is a “no-fault” divorce state, which means that the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong. To get a no-fault divorce, one spouse or domestic partner has to state that the couple cannot get along. Legally, this is called “irreconcilable differences.”

Divorce Summons: You must let the other party to a divorce know that you have filed for divorce. To do this, you must arrange for that spouse to be served with a copy of the complaint for divorce that you filed, “notice” and a “domestic relations summons.” These are the papers that tell your spouse what has happened and what will happen next. The court will provide you with the notice and summons when you file your papers.

Engagement Letter/Retainer Agreement: a written document that sets the attorney’s hourly rates and other information regarding the billing. You will be required to submit a retainer at the beginning before work commences on your case against which hourly rates will be applied.

Interrogatories: These are questions that are specially prepared by a party to a divorce case. These questions are provided to the other party to answer under oath. The purpose of interrogatories is to provide relevant facts about the case and determine the major issues of the case.

Joint Petition: This is an uncontested divorce form that is filed jointly by both parties, along with all uncontested divorce documents, such as a separation agreement, financial statements, court statistical forms and the like. A Joint Petition signals that you are filing an uncontested divorce, which means you and your spouse have 100% agreement on all issues.

Judgment of Divorce Absolute: This just refers to the date that you are actually considered “legally divorced” and can now remarry. This date is not on the day of your final hearing, but rather a period of usually 90 days from that hearing (or 120 days, if you filed a “1A” uncontested divorce).

Judgment Nisi: This is the judgment that is issued at your final hearing date, and thereafter, your divorce is not final for another 90-day. Until that 90th day expires, you are still considered married and cannot remarry. If you and your spouse decide to reconcile during this 90 day period, you both must file affidavits requesting to stop the divorce. If you do nothing, your divorce will become final on the 91st day (a.k.a. judgment of divorce absolute).

Jurisdiction: This is a legal concept that gives courts the power to hear a case. The geographic area over which legal authority extends.

Litigation: The court process that contested divorce engages in. It only takes one spouse to engage in litigation through filing a complaint for divorce, that in turn, forces the other spouse on the defensive side.

Marriage Certificate: it is to prove that you were married. You can obtain a certified copy of the document from the government department or agency where you were married.

Mediation: This is an alternative method to dissolve your marriage. This is a method that works for couples that desire an amicable divorce and can cooperate with one another. Couples can meet with a neutral third party (the “divorce mediator”) to discuss and work out the terms of their divorce. Unlike arbitration, mediation is a voluntary process which requires the cooperation and will to compromise by each party, so a resolution that is binding can be signed by both parties. Unlike arbitration, where the arbitrator makes the decision, the parties create their own agreement based on their own negotiations.

Memorandum of Understanding: Basically, this is a document that sets out the terms of a divorce agreement or settlement negotiated by the parties. It is often used by parties that are seeking a no-fault divorce with the assistance of mediators. This document can be construed as your divorce agreement.

Motion: a request in writing to the court. The purpose of filing a motion is to obtain a court order from the judge that will provide a temporary solution to a problem. Here are some examples of motions during a case: Motion for Temporary Support, Motion of Temporary Custody, Motion for Attorney Fees, and Motion for Temporary Restraining Order.

Parenting Time (visitation): Parenting time is another term for visitation. Parenting time refers to how each parent will spend time with the children. Compare this to “child custody,” which means the rights and responsibilities between parents for taking care of their children. Remember, in California, one parent may have custody or both parents may share custody.

Paternity: Establishing paternity refers to determining the “legal” father of a child. This is significant to know because if you are determined to be the legal father of a child, you have significant rights and responsibilities to support and care for that child. The legal father may be required to provide child support or may have custody or visitation rights. A paternity action is brought usually when the child is born out of wedlock and the father has not signed a voluntary acknowledgment of paternity or is identified on the child’s birth certificate. The mother of a child or the putative father (alleged father) can bring this action, and if the court orders it, the putative father and child must submit to a genetic marker test.

Petitioner: In California, the party who files the divorce is called the Petitioner

Prenuptial Agreement: this is basically a contract between a couple who plans to marry and want certain rights and/or property protected. A prenuptial agreement is sometimes called a premarital agreement or “prenup” for short.

Property Division: California is a “community property” state, so the law recognizes your property acquired as a married couple as separate from your property acquired before the marriage. This means your property acquired prior to your marriage is not up for division at the time of divorce, which is known as separate property. The community property is then divided equally according to the total fair market value of all your assets and obligations.

Postnuptial Agreement: This type of an agreement is made by spouses during their marriage as opposed to prior to marriage like a prenuptial agreement. It is a way for parties to resolve financial differences in the event of a divorce. The goal is to restore harmony in the marital relationship. The agreement must comply with strict legal standards in order to be enforceable, so spouses will often seek the service of a mediator or experienced attorneys to ensure the validity of their agreement.

Qualified Domestic Relations Order (QDRO): This is an order from a court as a result of a divorce judgment/agreement, which directs the plan administrator to divide a retirement plan or assign rights to the spouse of the plan participant. This allows a retirement account to be split-up without any income tax or penalty impacts.

Request for Production of Documents: This is an official request for documents that initiates the fact-finding process which occurs prior to trial.

Respondent: The party who answers is called the Respondent.

Residency Requirement: Requirements that prove residency in the state. The court needs jurisdiction in order to have a judge reside over your case–it must have jurisdiction over both spouses or a family law clerk will not accept your divorce case for filing. In California, one spouse or the other must have lived in California for at least six months and in the county where the divorce is being filed for at least three months.

Restraining Order (a.k.a. 209A Restraining Order): A 209A Restraining Order can also be referred to as an “abuse prevention order” or a “protection order.” It is designed to provide legal protection to victims of domestic, physical or sexual abuse. For instance, the court may order the abuser not to have contact with you directly or indirectly, that the abuser leave and stay away from your home or work place, and in some instances temporary custody of children may be awarded to you. This type of restraining order can be obtained against a spouse, a former spouse, a relative, a current or former household member, or someone that you’ve had a serious dating relationship with. You should understand that this order is civil in nature and the violation of it is considered criminal. For example, if you are filing a 209A restraining order against your former spouse, he or she will not immediately go to jail, yet if a violation occurs and then that person is convicted, he or she may face up to two and a half years of jail time or a fine of up to $5,000, or both.

Return of Service: Return of service is a written acknowledgement by a process server stating that there was service of legal documents, such as a summons and complaint.

Separation Agreement (divorce agreement): A separation agreement is a contract between you and your spouse. It may be merged into your divorce judgment or it may “survive” as an independent contract between you and your spouse. It may have some terms that merge and some terms that survive. This is a complicated area of the law and you should consult with an attorney to obtain an understanding how merger and survival will impact the future interpretation of your agreement. In general, the separation agreement will address the financial concerns surrounding your divorce, such as the division of your assets and debt, spousal support (a.k.a. alimony), child support, and custody. Courts will review the separation agreement to ensure it is fair and not the result of fraud or duress.

Summary Dissolution of Marriage: California permits what is called a Summary Dissolution of Marriage. This is also sometimes known as a simplified or special dissolution of marriage. A summary action is an inexpensive and easy way to divorce for those couples who qualify under the specific requirements and have been married for less than 5 years.

Temporary Order: Once you have filed your Petition for Dissolution of Marriage or legal separation, you can ask for temporary orders while your case moves ahead. Typical orders are for custody and visitation of the children, spousal support, or child support. The order remains in effect until the final hearing on the case, and they are no longer in effect once the final judgement is in place. The only way that it could remain is if the final judgment or divorce agreement include the terms of the temporary orders in them.

Uncontested Divorce: An uncontested divorce is when both parties are in complete agreement regarding all matters pertaining to their divorce in the separation agreement.