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: California is a community property state. Community property generally means that all assets purchased or acquired by a couple during the course of their marriage are owned equally by both of them. This is the case regardless of how the asset is titled. It is important to consult with an attorney in California when you are trying to decipher what may be considered community property.
Custody: The two types of custody in California are “legal custody” and “physical custody.” 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. Discovery may be utilized by either side 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: Discovery 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.”
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 the divorce that you filed; “Summons” and a “Proof of Service of Summons.” These are the papers that tell your spouse what has happened and inform the court that you had served the papers on the other spouse, respectively. 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.
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.
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: A marriage certificate is to prove that you were married. You can obtain a certified copy of the document from the city or town hall in the town where you were married.
Mediation: Mediation is a peaceful alternative to litigation. Mediation works for couples that desire an amicable divorce and can cooperate with one another. Couples can meet with a neutral third party (a certified “divorce mediator”) to discuss and work out the terms of their divorce. Mediation is a voluntary process that requires the cooperation of both parties to reach a resolution.
Motion: A Motion is 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, etc.
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.
Petitioner: In California, the party who files the divorce is called the Petitioner.
Prenuptial Agreement: A prenuptial agreement is 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.
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): A QDRO is a specific type of court order that divides retirement plan benefits in a divorce. A QDRO is issued in addition to your final judgment granting your divorce, and contains specific directions to the retirement plan administrator detailing how the plan should be divided between yourself and your spouse.
Request for Production of Documents: This is an official request for documents during the Discovery phase, that initiates the fact-finding process which occurs prior to trial.
Respondent: The party who answers is called the Respondent.
Residency Requirement: A California court needs jurisdiction in order to have a judge preside over your case. 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 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.
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.
Uncontested Divorce: An uncontested divorce is when both parties are in complete agreement regarding all matters pertaining to their divorce in the separation agreement.