Divorce Terms2017-09-28T01:10:41+00:00

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

Abandonment: A reason for divorce. Abandonment occurs when one party has left the other for a continuous period of one year or more, without the party’s consent, and without justification (good cause).

Adultery: A reason for divorce. Adultery is any sexual act, or deviate sexual act (as defined in the Penal Code), with another person at a time when that person has a living spouse.

Affidavit of Service: A document signed by a non-party who has served any papers in a lawsuit such as the Summons and Verified Complaint containing an oath that the papers were properly served. When completed, it is submitted with these papers.

Note: One party cannot serve another. This sworn statement must give the date, time, place, the way it was served, and a description of the person who is given the documents.

back to topAgreement: A formal written understanding between two people concerning their respective rights and their duties to each other.

Alternative Dispute Resolution: (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law. These processes are generally confidential, less formal, and less stressful than traditional court proceedings.

Ancillary Relief: In an action for divorce, additional or other help asked for beyond a judgment of divorce, such as maintenance (formerly called “alimony”) payments, division of property, responsibility for debts (bills), child support, etc.

Annulment: A court declaration that states that a marriage was never legally valid. After an annulment, the parties are free to remarry.

Answer: The response to the complaint. In a divorce action, the answer must be verified.

Burden of Proof: A party’s duty to prove the truth of his or her claims (charges against someone else) in the lawsuit.

Child Support: Money paid by one parent to another for a child’s expenses after separation and/or divorce.

Child Support Standards Act (CSSA): The Law that determines child support obligation. Charts are available to assist.

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Collaborative Law: Process in which a couple hires specially-trained lawyers and other professionals who work to help them resolve their conflict out of court.

Commingle: When one mixes separate funds or properties into a common fund or bank account.

Complaint: The initial pleading to a court in a civil matter, written by the Plaintiff or his/her attorney. In a divorce action, it contains the Plaintiff’s allegations of his or her reasons for divorce, and it must be verified.

Constructive Abandonment: A reason for divorce. This is when the one party has refused, without justification, to have sexual relations with the other, continuously for a period of one year or more, without that party’s consent.

Contempt: The willful disregard and disrespect of a court order of the judge’s authority. Conduct that defies the authority or dignity of a court. It is usually punishable by fine or prison or both.

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.

back to topCounterclaim: A claim by the Defendant against the Plaintiff written in the Verified Answer. A Verified Answer responds only to the allegations (charges) in the Verified Complaint. A counterclaim may be added to the Verified Answer to say that the Defendant also wants a divorce from the Plaintiff and states Defendant’s reasons for the divorce.

Cruel and Inhuman Treatment: A reason for divorce. Cruel and inhuman treatment consists of cruelty, whether physical, verbal, sexual or emotional, committed by the Defendant, against the Plaintiff, that endangers the Plaintiff’s physical or mental well-being and makes living together either unsafe or improper.

Custody, Legal: The legal right to make major decisions affecting a child under the age of 18.

Custody, Physical: The actual physical care and control of a child under the age of 18. The person with physical custody usually provides the child’s primary residence.

Default Judgment: A divorce judgment that is obtained against the Defendant when the Defendant fails to respond to either:

(a) the Summons and Verified Complaint; or
(b) the Summons With Notice, for the divorce within the time allowed by law.

Defendant: The person against whom (the person who is served) the divorce action is brought.

Deposition: A person’s out-of-court, sworn testimony that is reduced to writing (usually by a court reporter) for later use in the lawsuit. Except for a judge not being present, it is conducted in a manner similar to trial. Also known as an Examination Before Trial (EBT).

Discovery: Required disclosure, at a party’s request, of information that relates to the litigation. In divorce cases, it usually relates to financial information. Upstate, disclosure can also relate to grounds for divorce and custody issues.

Divorce: The legal ending of the marriage between two parties so that each is free to marry again.

Domestic Relations Law (DRL): Contains the requirements of New York State law that are followed for divorce and other related matrimonial actions and proceedings.

Emancipation: The release of a child from the responsibility and control of a parent or guardian. Under New York law, child support must be paid until the age 21. If a child marries, enters the military or becomes self-supporting, before turning 21, the court may consider the child emancipated, and child support may be terminated.

Equitable Distribution: The way marital property must be divided by law in a divorce action in New York State. Equitable distribution does not necessarily mean 50% of one asset to one party and 50% to the other. Distribution is based on various factors presented to the court.

Family Court: The Family Court in New York State has the jurisdiction to hear cases involving child support, custody, visitation, spousal support and family offenses (Orders of Protection). A divorce action cannot be heard in this court.

Guardian Ad Litem (GAL): A guardian usually a lawyer, appointed by the court to help a minor or incompetent person in a lawsuit. In a divorce case, the guardian ad litem does not act as an attorney for the child, but reports to the court on what is in the child’s best interests.

Irretrievable Breakdown: The relationship is impossible to repair for a period of at least six months.

Judgment of Divorce: A document signed by the court granting the divorce.

Jurisdiction: The authority of a court to act in particular matters.

Maintenance: Support paid by one party to the marriage for the support of the other party to the marriage pursuant to a final Judgment of Divorce (sometimes also referred to as “post-divorce maintenance” or “spousal support”).

Marital Property: Any property, regardless of which person is named as owner, that the Plaintiff or Defendant obtained from the date of marriage to the beginning of the divorce action. A house, car, IRA, bank account(s), pension, annuity, business and advanced degree are all examples of marital property. However, an inheritance, a gift from someone other than your spouse, compensation for personal injuries, may be deemed separate property.

Mediation: A neutral person called a “mediator” helps the parties try to reach a mutually-acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves. Mediation may be inappropriate if a party has a significant advantage in power or control over the other.

Order of Protection: An order issued by a court which directs one person to stop certain conduct, such as harassment, against another person. The order may also direct the person to be excluded from the residence and to stay away from the other person, his or her home, school, place of employment and his or her children.

Plaintiff: The person who starts the divorce action/lawsuit.

Poor Person Application: An application made to the court, by either the Plaintiff or Defendant, stating that because of insufficient income he or she is unable to pay the court fees normally required for divorce actions. If the application is granted by the court, the usual court costs for the divorce action are waived.

Removal of Barriers to Remarriage Form: This form is necessary when the marriage was solemnized in a religious ceremony by a member of the clergy, minister of any religion, or a leader of The Society for Ethical Culture. It requires the party obtaining the divorce to acknowledge that he or she has taken all steps to remove religious barriers to the other party’s remarriage.

Separate Property: Property considered by the courts to belong only to one spouse or the other. It is not available for equitable distribution.

Separation: One spouse’s absence from the marital household prior to divorce.

Separation Agreement: A written agreement on support for the child(ren), spousal maintenance payments, division of marital property, responsibility for debts (bills), residence of child(ren), child care and related issues. This agreement must be formally signed and acknowledged and covers the period before divorce but after the separation.

Settlement Agreement: A formal, voluntary, written agreement on all of the issues surrounding divorce. It must be formally signed and acknowledged.

back to topStipulation: A voluntary agreement between parties on an issue or issues related to the divorce proceedings.

Summons with Notice: A legal document which starts the Plaintiff’s action for a divorce and requires the Defendant to serve a Notice of Appearance in the action within a specific period of time. This document is initially filed with the County Clerk’s Office and a copy is then served upon the Defendant to give notice that the Plaintiff has started a divorce action. It states the reason(s) for the divorce and may also include requests for additional relief such as: child support, custody, visitation, spousal maintenance and equitable distribution.

Temporary Order: creates the new “status quo” that can be difficult to change late. It 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.

Unemancipated Children: Children under the age of 21 who are supported by a parent or guardian. (See Emancipation)

Uncontested Divorce: An uncontested divorce occurs when:

(a) there are no disagreements between you and your spouse over any financial or divorce-related issues (i.e., child custody and support, division of marital property or spousal support); and

(b) your spouse either agrees to the divorce, or fails to appear in the divorce action