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Do you get confused by all the legal terms that are thrown around? Is that confusion making an already difficult situation worst? We have compiled an extensive list of commonly used legal terms. This list includes definitions designed to make matrimonial law more understandable.
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Abandonment: A reason or “ground” 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.
Adultery: A reason or “ground” for divorce. Adultery is any sexual act, or deviate sexual act (as defined in the penal code), with another person (non-spouse) at a time when that person has a living spouse.
Acknowledgment: A formal statement by the person authorizing a document made in front of a notary public, who signed a document and confirms that the person’s signature is authentic.
Affidavit of Service: A documents signed by a non-party who has served any papers in a legal proceeding, 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.
Agreement: A formal understanding, usually written, but sometimes read into the record in Court, between two people concerning their respective rights and their duties to each other.
Annulment: A Court declaration that states that a marriage was never legally valid. After an annulment, the parties are free to remarry. This has no effect on a religious annulment which has separate rules, depending on the individual religion.
Bifurcation: When a judge will divide issues before a trial so that one issue will be ruled upon before hearing evidence on the other issue. This is typically to prevent any prejudice to a party.
Burden of Proof: A party’s duty to present evidence proving the truth of his or her claims (charges against someone else) in the legal action.
Child Support: Court-ordered funds to be paid by one parent to the custodial parent of a minor child after divorce or separation. The amount of support will be based on several factors, including the income of both parents, the number of children, any special needs for the child and more.
Child Support Standards Act (CSSA): The Law that specifies a party’s child support obligation depending on his or her income.
Commingle: When one spouse mixes separate funds or properties into a common fund or bank account.
Contempt: The willful disregard, disobedience or disrespect of a Court Order or the Judge’s authority. Conduct that defies the authority or dignity of a Court. It is usually punishable by fine or prison or both.
Custody (Legal): The legal right to make major decisions affecting a child under the age of 18.
Custody (Physical or Residential): The actual physical care and control of a child under the age of 18. The person who has physical custody usually provides the child’s primary residence.
Custody (Joint Legal): Each party has a “vote”. If the parties differ, there may or may not be a tie breaking mechanism.
Defendant: The person against whom (the person who is served) the divorce action is brought.
Deposition/Examination Before Trial (EBT): 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.
Discovery/Disclosure: At a party’s request, the furnishing of information and documents that relate to the court proceeding. In divorce cases, it usually relates solely to financial information. In other jurisdictions, disclosure can also relate to the grounds for divorce and custody trials.
Discovery and Inspection (D&I): The efforts of both parties to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), and more.
DSM IV: DSM stands for the Diagnostic and Statistics Manual which Psychologists use as a handbook to diagnose psychological disorders and syndromes.
Earning Capacity: A person’s ability or power to earn money, given the person’s talent, skills, training and experience.
Enhanced Earning Capacity: Evaluation of a parties’ ability to earn additional income based on a degree or license.
Egregious Behavior: May be the basis of obtaining additional equitable distribution.
Egregious Conduct: Extremely or remarkably bad conduct which shocks the conscience of the Court.
Emancipation: The release of a child from the responsibility and control of a parent guardian. Under New York State Law, child support must be paid until the age of 21. If a child marries, enters the military or becomes self-supporting before turning 21, the court may consider the child emancipated, and the child support may be terminated.
Enjoin: To legally prohibit or restrain an action by a court injunction (order), such as freeze a bank account, etc.
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.
Evidence: Something (including testimony, documents and tangible objects) that tends to prove or disprove an alleged fact.
Exhibit: A document, record, or other tangible object formally introduced as evidence in Court.
Ex Parte (communication): An application or statement made to the Court by one party (including counsel) to a proceeding without notice to, or in the absence of, the other party. This type of communication to the court is generally prohibited, except for scheduling issues.
Expert: A person who, through education or experience, has developed skills or knowledge of a particular subject, so hat he or she may form an opinion that will assist the judge or jury in making a decision.
Forensic: In courts of law, it relates to the application of a particular subject of expertise such as medicine, science or accounting to the law. A forensic evaluator may be appointed by the Court or retained by a party to offer an opinion as to custody, parenting access schedule, value of a business, professional practice, license or degree.
Hearsay: Testimony that is given by a witness who tells not what he or she knows personally, but what others have said which is therefore dependent on the credibility of someone other than the witness. That testimony is generally inadmissible under the rules of evidence, but there are many exceptions.
In Camera: A trial judge’s private consideration of evidence, without public, parties or attorney’s present. Typically, sensitive information about child custody or business records are reviewed on camera, not in open court.
Interrogatory: A written question or set of questions given to the other party in a lawsuit as part of discovery.
Judgment of Divorce: A document signed by the Court granting the dissolution of marriage.
Law Guardian: An attorney for the child in a contested custody matters which is appointed by the court to represent his or her interests. Now known as Attorney for the Child.
Maintenance: Spousal support, formerly known as “alimony”, but with different rules.
Martial 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.
Motion: A formal request made to a judge for an order or judgment. Motions are made in court all the time and for many purposes.
Order of Protection: An order issued by a court which directs one person to stop a 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, please of employment and his or her children.
Order to Show Cause (OSC) : A judge's written mandate that a party appear in court at a certain date and given reasons, legal and/or factual, why a particular order should not be made.
Pendente Lite: This is a Latin phrase, but is still used and quite important in Matrimonial Law. It means, for the time being. The most common usage relates to motions, tthose are requests, for relief on an emergent or temporary basis. The most common Pendente Lite motions are for:
Exclusive Occupancy of the Marital Residence
Application by an Attorney for the Child
Custody of the Children
Appointment of a Forensic Evaluator
re: Value of Business
Preliminary Conference: This is typically the first court appearance in a divorce action where the parties are required to appear with their respective attorneys. Parties will exchange Statements of Net Worth and supporting documents, as well as complete a Preliminary Conference form.
Pro Se (aka self-represented): Appearing on your own behalf without an attorney.
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.
Request for Judicial Intervention: A form filed with the court to request to have a Judge assigned to the case.
Separate Property: Property considered by the courts to belong only to one spouse or the other. It is not available for equitable distribution unless converted to marital property.
Separation Agreement: A written agreement providing that the spouses will live apart and specifying one or more of the following: 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.
Subpoena: A legal document requiring a person’s attendance at a particular time and place to testify as a witness or to provide certain documents that are requested. Failure to comply can be contempt of court. (A judicial subpoena is issued by the court)
Summons with Notice: A legal document which, when filed, 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 an action for divorce. It states the reason for the divorce and may also include request for additional relief such as: child support, custody, visitation, spousal maintenance and equitable distribution.
Support: Payment for housing, food, clothing and related living expenses.
Venue: The permissible county for the trial of a lawsuit.
Visitation (Parenting Access Schedule): The right of a parent to be with a child for specified period of time.