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Glossary of Terms

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  • Action
    A lawsuit or proceeding in a court of law.
     
  • Affidavit
    A written statement under oath.
     
  • Alimony
    Payments  made to a separated or divorced souse as requited by a divorce decree  or separation agreement, now called Spousal Support or maintenance.
     
  • Alternate Dispute Resolution  (ADR)
    Ways  of making decisions and resolving disputes other than litigation  (contested hearings); this includes Collaborative Practice, mediation,  arbitration and cooperative divorce.
     
  • Annulment
    Like  a divorce, an annulment is a court procedure that dissolves a marriage.  Unlike a divorce, annulment treats the marriage as through it never  happened. For some people, divorce carries a stigma. They would prefer  to have their marriage annulled. Others prefer an annulment because it  may be easier to remarry in their church if they go through an annulment  rather than a divorce.
    There are two types of annulment, civil annulment (by the state  government) and religious annulment (by a church). Most annulments take  place after marriages of a very short duration — a few weeks or months –  so there are usually no assets or debts to divide, or children for whom  custody, visitation, and child support are a concern. When a long-term  marriage is annulled, however, most states have provisions for dividing  property and debts, as well as determining child custody, child  visitation and child support. Children of an annulled marriage are not  considered illegitimate.
     
  • Answer
    The written response to a complaint, petition, or motion.
     
  • Appeal
    A legal action where the losing party requests that a higher court review the decision.
     
  • Appearance
    This  term refers to the party or the person representing the party. The  Appearance form advises the court who will be representing the party, or  the acknowledgment in open court by an attorney that they will be  representing the party, so that the court can communicate with the  individual or their representative.
     
  • Case Management Conference
    An  opportunity to discuss issues and problems of a legal case. Usually the  first appearance in court by the parties and their attorneys after a  complaint and answer are filed. In the State of California there are  only two legal grounds for divorce or legal separation of a marriage or  domestic partnership: irreconcilable difference, or permanent legal  incapacitation to make decisions.
     
  • Child Custody
    This  refers to rights regarding a child. There are two different types of  custody: legal custody and physical custody. For legal custody, there  are different variations of custody, sole custody and joint custody. The  most common form of custody is Joint Legal Custody. With Joint Legal  Custody, both parents make the decisions on behalf of the children  concerning health, education, religion, and general welfare.
    Physical custody is often pursuant to a co-parenting plan, and can  take a variety of forms or schedule, depending on the needs of each  family. Physical custody refers to where the child lives on a regular  basis. Generally, the parent the child does not live with will be  allowed to have regular time with the child. The standard for deciding  physical custody is “best interest of the child.” Parents can make any  custodial arrangement in the best interest of their children.
    California will usually award joint physical custody to both parents  when the child spends significant amounts of time with both parents.  Joint physical custody works best if parents live relatively near to  each other, as it lessens the stress of children and allows them to  maintain a somewhat normal routine. Where the child lives primarily with  one parent and has visitation with the other, the parent whom the child  primarily lives will generally have primary physical custody, and the  other parent will be assigned specific custodial time periods.
    If parents cannot agree on custody arrangements, there is a contested custody hearing. See CUSTODY BATTLE.
     
  • Child Specialist
    An  experienced, licensed therapist with specific education and training in  the expected behaviors, stages, challenges and tasks of the development  of a child. They work with the child(ren) to address specific emotional  and practical day-to-day needs as they relate to the divorce process.  The Child Representative also helps in designing the parenting plans  that specifically address the defined needs of the child(ren) as they go  through the restructuring of the family.
     
  • Child Support
    A set amount of money paid by one parent to the other parent in accordance with the California Family Code.
     
  • Child Support Guidelines
    California  has child support guidelines that must be followed in awarding child  support. The guidelines are a formula. There are only a few  circumstances when the court can award child support higher or lower  than the guidelines.
     
  • Collaborative Divorce
    See Collaborative Practice.
     
  • Collaborative Divorce Professionals
    See COLLABORATIVE ATTORNEY, FINANCIAL SPECIALIST, CHILD SPECIALIST, DIVORCE COACH.
     
  • Collaborative Family Law
    See COLLABORATIVE LAW. Family Law is the area of law that deals with separation, divorce, child custody, and division of marital assets.
     
  • Collaborative Law
    Collaborative  Law describes the legal component of Collaborative Practice. It  consists of two clients and the respective attorneys that work together  toward the sole goal of reaching an efficient, fair, comprehensive  settlement of all issues. Both attorneys sign a written agreement that  disqualifies/prohibits them as their client’s attorney to participate in  any subsequent legal proceedings. The lawyers cannot go to court or  threaten to go to court. Settlement is the only agenda.
    If either client goes to court, both Collaborative lawyers are  disqualified from further participation. Each client has legal advice  and each lawyer’s job includes guiding the client toward reasonable  resolutions. The legal advice is an integral part of the process, but  the clients make the decisions. The lawyers prepare and process all  papers required for the divorce.
     
  • Collaborative Mediation
    Collaborative  Mediation is a style of mediation where two or more people are  encouraged to work toward resolution in a transparent and peaceful  manner. The goal is to support the parties to unfold the issues and  create fair agreements that will stand the test of time.
     
  • Collaborative Meeting
    The  Collaborative Process is conducted through a series of meetings with  both parties and their Collaborative attorneys, coaches, child  specialist, and financial professional(s). Meetings are intended to  produce an honest exchange of information, the expression of needs and  expectations, and the concern for the well being of the children. Mutual  problem solving, brainstorming and creativity are the products of these  Collaborative meetings, which result in solutions and agreements. There  are different ways clients can interact with the professionals working  on their behalf. This versatility creates tremendous flexibility and  creativity for maximum problem solving, solutions, and agreements in the  Collaborative Process.
     
    • Three-Way Meetings: When both parties meet with the financial neutral or neutral child specialist.
    • Four-Way Meetings: Meetings with the clients and attorneys or the clients and their coaches participating.
    • Six-Way Meetings: Attorneys and coaches meet with both clients.
    • Seven-Way Meetings: The above with the addition of the financial professional.
    • Eight-Way Meetings: The above, with the child specialist also attending.
  • Collaborative Practice
    An  out of court process for resolving disputes respectfully, using a  non-adversarial approach. It uses specially trained lawyers and other  professionals such as financial or mental health practitioners to help  the spouses negotiate a mutually acceptable settlement without going to  court.
    In Collaborative Practice, core elements form the parties’ contractual commitments. These include:
     
    • Negotiate a mutually acceptable settlement agreement.
    • Maintain open communication and information sharing.
    • Create shared solutions that they believe are in the best interest of their family.
    • Create shared solutions acknowledging the highest priorities of all.
    • Collaborative Practice can also apply to disputes involving  employment law, probate law, construction law, real property law, and  other civil law where continuing relationships exist after the conflict  has been resolved. In Collaborative Practice, the lawyers sign an  agreement that disqualifies attorneys and other professional team from  participating in litigation if the Collaborative process ends without  reaching an agreement.
      Advantages of Collaborative Practice include:
       
    • Lower Cost: The collaborative process is generally less costly and time-consuming than litigation.
    • Client involvement: The clients are a vital part of  the settlement team and have a greater sense of involvement in the  decision making which affects their lives.
    • Supportive Approach: Each client is supported by  his or her lawyer and coach in a manner that still allows the attorneys  to work collaboratively with one another in resolving issues.
    • Less Stress: The process is much less fear and  anxiety producing than participating in antagonistic court proceedings.  Everyone can focus on settlement without the imminent threat of “going  to Court.”
    • Win-Win Climate: The Collaborative Process creates a  positive climate that produces a more satisfactory outcome for both  parties. The possibility actually exists for participants to create a  climate that facilitates “win-win” settlements.
    • Speed: The speed of the Collaborative Process is governed by the parties rather than court calendars.
    • Creativity: The Collaborative Process encourages creative solutions in resolving issues.
    • Clients in Charge: The non-adversarial nature of  the Collaborative Process shifts decision making into the hands of the  clients where it belongs, rather than into the hands of a third party  (the court).
  • Collaborative Process
    The  Collaborative Process uses team meetings and conferences to settle all  issues. The Collaborative Process relies on an atmosphere of honesty,  cooperation, integrity, and professionalism. It requires that both  parties, with the assistance of their attorneys and other professionals  provide all pertinent documents and work together toward a shared  resolution.
     
  • Collaborative Team
    The  Collaborative team is the combination of professionals that the couple  chooses to work with them to resolve their dispute. In addition to  Collaborative lawyers, a full team includes a neutral financial  professional specialist, divorce coaches, a child specialist, and other  specialists the clients believe would be helpful. The “Collaborative  team” guides and supports the couple as problem-solvers, not as  adversaries.
     
  • Common Law Marriage
    A  common law marriage comes about when a man and woman who are free to  marry agree to live together as husband and wife without the formal  ceremony. To be common law married, both spouses must have intended to  be husband and wife. Only certain states recognize common law marriages.  California law does not recognize common law marriages.
     
  • Community Property
    Any asset acquired, or income earned, by a married person while living with a spouse.
     
  • Contempt
    Failure  to follow a court order. One side can request that the court determine  that the other side is in contempt and punish him or her.
     
  • Contested Divorce
    A  contested divorce is one in which the husband and wife cannot come to  an agreement on one or several issues related to the termination of  their marriage. The couple must then take their issues(s) to a judge to  be decided.
     
  • Conventional Divorce
    In  a conventional divorce, parties rely upon the court system and judges  to resolve their disputes. In a conventional divorce spouses often come  to view each other as adversaries, and the divorce may be a  battleground. The resulting conflicts take an immense toll on emotions,  especially if there are children involved.
     
  • Custody
    See CHILD CUSTODY.
     
  • Custody Agreement
    The  purpose of the custody agreement is to reach an understanding on how to  raise and care for the child(ren) with both parents sharing in the  responsibilities and maintaining involvement in the day-to-day life of  the child. For the custody agreement to work it is essential that both  parents be flexible. Every attempt should be made to encourage and  respect the relationship of the child and the other parent. Parents  should keep in mind that they are getting the divorce, they are not  divorcing their children. If parents cannot come to an agreement on  custody, then they will need to be prepared for a custody battle.
     
  • Custody Battle
    A  custody battle puts the child(ren) right smack in the middle of the  spouses’ battle. Spouses must consider why they are fighting for  custody. Is it fighting for custody or fighting so that the other spouse  doesn’t have custody? Is it in the best interest of the child(ren)?
    If parents engage in custody battle or dispute, the court will take  into consideration the best interest of the child when making a  decision. If the court feels neither parent is acting in the best  interest of the child, a guardian ad litem may be appointed to help in  making decisions on the behalf of the child.
    Depending on the age of the children, their wishes may or may not be  taken into consideration. In California, the court listens to the wishes  of the children. A 14-year-old child can usually have significant input  into the parenting plan.
    If the parenting situation presents an obvious issue affecting  custodial rights of one parent over the other such as in substance abuse  or physical abuse, a court-ordered independent evaluation called a “730  evaluation” will probably be ordered. A court-appointed mental health  professional conducts the evaluation. A thorough evaluation can include  interviews with all the parties involved (individually and with the  parent and child together); psychological testing of both parents and  the child; review of school records and or conversations with teachers;  review of medical records and developmental history; review of legal  records, such as the papers filed regarding the divorce, any possible  domestic disputes and any criminal records of either party involved. Be  prepared for the evaluation to take at least four months, if not longer.  Be prepared for a time-consuming and very costly battle.
     
  • Custody Dispute
    See CUSTODY BATTLE.
     
  • Date Of Separation
    The  couples conduct must evidence a complete and final break in the  marriage; this is a parting of the ways with no intention to continue  the marriage.
     
  • Declaration Of Disclosure
    Declaration  of Disclosure are required in cases of Legal Separation or Dissolution  of Marriage. They are to be exchanged by both parties under penalty of  perjury. They include an Income and Expense Declaration and a Schedule  of Assets and Debts with supporting documents attached.
     
  • Default
    A  party’s failure to answer a complaint, motion, or petition. In a  Divorce or Legal Separation, A default may be taken when a party’s fails  to file a Response within 30 days of service of Summons and Petition  for Legal Separation/Dissolution of Marriage.
     
  • Defendant
    The person a legal case is brought against.
     
  • Discovery
    The  entire efforts of one party to a lawsuit and his or her attorneys to  obtain information before trial. This can be done through demands for  production of documents, depositions of parties and potential witnesses  (questions usually asked and answered in person and recorded), written  interrogatories (questions and answers written under oath), written  requests for admissions of fact, and the petitions and motions employed  to enforce discovery rights. The theory of broad rights of discovery is  that all parties will go to trial with as much knowledge as possible and  that neither party should be able to keep secrets from the other  (except for constitutional protection against self-incrimination). Much  of the fight between the two sides in a litigated divorce takes place  during discovery. This can become extensive, time consuming and costly.
     
  • Dissolution
    Meaning “to end” or “dissolve.” Often used interchangeably with the world “divorce” as in “dissolution of marriage.” See DIVORCE.
     
  • Divorce
    Divorce  is a legislatively created, judicially administered process that  legally terminates a marriage no longer considered viable by one or both  of the spouses. Divorce is also known as dissolution of marriage.  Traditionally, divorce was fault-based. There was an “innocent or  injured” party and a party that had done “wrong.” The “innocent” party  could obtain legal relief or a divorce. This system was adversarial in  nature. Even if both parties wanted a divorce, one party had to allege  wrongdoing by the other. Starting in the 1970s in California, this  system was reformed and a “no-fault” system was put in place.
     
  • Divorce Coach
    A  divorce coach is a skilled mental health professional, trained to  manage a wide variety of emotions and issues that arise during divorce.  Collaborative Divorce Coaches are all licensed mental health  professionals (for example, psychologists, social workers, or marriage  and family therapists). Each coach is experienced in the area of divorce  and each coach receives specialized training in the Collaborative  Process. Divorce coaching is not legal advice and not therapy. Divorce  coaching is not about placing blame, finding fault or dealing with the  past. It is designed to help an individual cope with the strong emotions  generated by the major life changes created by a divorce, both positive  and negative.
     
  • Divorce Counseling
    See DIVORCE COACH.
     
  • Divorce Decree
    A  court’s formal order or judgment granting a termination of a marriage.  If a divorce case goes to trial, the judge issues a judgment. In a  Collaborative case, the parties sign a stipulated judgment that is then  accepted and signed by the court.
     
  • Divorce Filing
    A divorce in California starts when the Summons and Petition are filed with the Court.
     
  • Divorce Law
    Divorce  law is governed by the divorce laws in the state where Petitioner  and/or Respondent reside. Divorce laws may differ from one state to the  next with regard to issues like spousal support, child custody, property  division, filing procedures, and residency requirements. It is  important to consult with an attorney in the state where the Petition  was filed.
     
  • Divorce Litigation
    Litigation  is a legal term meaning carrying out a lawsuit. The word “litigation”  comes from the Latin word “litigates” meaning “to dispute, quarrel,  strive.” In a divorce, litigation can be very destructive to the parties  and their children. There are advantages of Collaborative Practice. See  COLLABORATIVE PRACTICE.
     
  • Divorce Procedure
    See DIVORCE PROCESS.
     
  • Divorce Process
    The  participants control the actual divorce process. The length of time it  takes to pursue a divorce through the court system affects the process  as well. In a litigated case, it often depends on how crowded the court  docket may be in your state or county, and can take two years or more. A  Divorce Process through the courts may include the following stages:  Jurisdiction, Summons and Petition, Temporary Hearings, Mediation  Co-Parenting Classes, Advance Case Review, Discovery, Experts,  Settlement, Settlement Conference/Pretrial, and the Trial.
    Many people are not aware divorces are not required to go through a  contested courtroom proceeding. Mediation or Collaborative Process cases  can proceed at the speed the clients choose, completely within their  control with the exception of the minimum waiting period in each state  before a divorce can become final.
     
    • Divorce Process: Jurisdiction – Before a divorce is  filed, a determination must be made where the matter will be heard.  Different states have different rules for bestowing jurisdiction. In  California, a party must have lived in the state for 180 days prior to  filing. If there are two possible jurisdictions, it may benefit the  party filing to serve the divorce documents first to choose jurisdiction  in their state. It is the primary benefit of serving and filing first.  There is little benefit to serving and filing first other than to  prepare in advance and to choose the jurisdiction.
    • Divorce Process: Summons – The summons is a  document announcing a divorce or legal separation action is being  commenced in California. This document also indicates from the time it  is filed moving forward, neither party may dispose of marital assets,  change insurance coverage or modify any other significant holdings  except for the necessities of life.
    • Divorce Process: Petition – The  Petition has two parts. The first part is a statement of facts which  describes the identities of the parties, whether they have children and  what assets they may hold. The second part of the Petition seeks relief  such as an award of custody, spousal maintenance or child support and a  division of assets and debts. The Petition is often tailored to seek the  maximum relief. It is a positioning paper that will often seeks as much  relief as the proponent could possibly seek.
    • Divorce Process: Petition and Response – In the divorce process, the opposing party has thirty (30) days to  submit a response to the divorce petition. The response is the opposing  party’s statement of facts and request for relief. Often the service of a  response is waived. This is often done to save the parties the cost of  an additional filing fee should the matter be settled. However, if the  opposing party does not grant a waiver or extension and a response is  not filed within thirty (30) days, the original party may seek a  default. A default means that the original moving party may request the  relief requested in their petition without opposition. Late answers are  often accepted since courts prefer determining cases on their merits  rather than by default.
    • Divorce Process: Temporary Hearing – A temporary hearing may also be called a Pendente Lite Hearing. Such  a hearing may be scheduled by either party by filing a Motion supported  by an affidavit. Temporary/Pendente Lite hearings are designed to  resolve issues while the divorce is pending including temporary custody,  temporary child or spousal support; where the parties are going to  reside pending the resolution of the case; protection from harassment  and domestic violence; injunctions against financial improprieties; and  the use of assets such as bank accounts, investments, or property.
    • Divorce Process: Discovery – Discovery refers to  the “investigation” phase of the divorce process. It is primarily  dedicated to identifying the contested issues, a determination of  assets, income and debt of the parties. This exchange of information can  be conducted informally with the parties agreeing to freely exchange  the information or, formally, through the submission of formal documents  that require answers under oath. (See Declaration of Disclosure)
    • Divorce Process: Experts – Experts are often  employed to determine certain facts. Experts may be jointly agreed upon  by the parties, which can save the cost of having individual experts  testify at trial. Where that is not possible, each side may hire an  expert to contest an issue and require their testimony at trial. Common  experts include:
    • Child custody evaluators
    • Financial planners to determine future economic circumstances
    • Business evaluators to determine the monetary value of a businesses
    • Real estate appraisers to value property such as homes or land
    • Personal property appraiser to value furnishings and other assets  (often this is an auctioneer experienced in selling home goods)
    • Vocational evaluator to determine earning capacity
    • Psychologists to testify to mental health issues
    • Divorce Process: Settlement – A divorce or legal  separation case may be resolved at any time the parties come to an  agreement on the issues. In such cases, the parties would sign a Marital  Settlement Agreement or some other form of stipulation resolving their  issues. This can occur right up to the point of trial in court.
    • Divorce Process: Settlement Conference/Pretrial –  Settlement or pretrial conferences are scheduled by the court. In such  conferences the court may require each party to submit a trial brief of  the cases and issues. The judge may meet with the lawyers and/or parties  to discuss the issues and to make settlement recommendations.
    • Divorce Process: Trial – If the spouses are unable  to settle the case, it will go to trial. At trial each party tells his  or her story to the judge. It is told through testimony, the testimony  of other witnesses, and documents called exhibits. At trial, the moving  party (usually called the petitioner or plaintiff) presents his or her  case first. He or she calls witnesses who are subject to  cross-examination by the opposing party. When the plaintiff or  Petitioner rests his or her case, the Respondent or Defendant presents  his or her own case with witnesses and evidence, each subject to cross  examination by the opposing party.
  • Divorce Recovery
    Recovery  from a divorce and the ending of a close relationship is not easy.  There is an adjustment process after a divorce, and there are many  resources available to help along the way. See DIVORCE SUPPORT.
     
  • Divorce Support
    Divorce  is one of life’s most difficult experiences. To find help and healing  for the hurt of separation or divorce, sources of support can include:
     
    • The Collaborative Team guiding and supporting you through the divorce process
    • Divorce support groups
    • Divorce recovery groups
    • Programs for children of separation or divorcing parents
    • Websites dedicated to supporting divorcing couples and restructuring the family
    • Divorce Counseling including Marriage and Family Therapy
    • Clergy or religious counseling
    • Close friends
    • Articles, books, stories about and by divorcing/divorced couples
    • Divorce Therapist – See Marriage and Family Therapist.
  • Divorce Visitation
    See CHILD CUSTODY.
     
  • Effects Of Divorce
    The  effects of divorce can change virtually every aspect of people’s lives,  including where they live, with whom they live, their standard of  living, their emotional happiness, their assets and liabilities, time  spent with children and other family, and so much more. Some effects of  divorce can be positive, such as ending an unhappy or even abusive  relationship. Other effects of divorce can be detrimental to personal  well-being.
     
  • Effects Of Divorce On Children
    Divorce  affects children differently, depending on their gender, age and stage  of development. Their world, their security and their stability seems to  fall apart when their parents’ divorce. The following are some  universal responses that researches have found among children of  divorce:
     
    • Feelings: Children worry that their parents don’t  love them anymore and they feel abandoned. They feel like the parent who  left has divorced them, too. They feel powerless and helpless because  they can’t get their parents back together. They can’t speed up or slow  down the process. They feel angry although they may not express their  anger. They often feel they are at fault. They may believe something  they did or said caused a parent to leave. They grieve. Divorce is a  loss in the lives of children and parents. They experience a grieving  process very similar to mourning a death. They experience conflict of  loyalty.
    • Behavior: Acting out behavior ranges from very mild  behavior, such as difficulty sleeping, to extremely destructive  behavior, such as suicide, drug abuse, or violence. Other behaviors may  include problems in school, nervous habits, repetitive
      physical behaviors, and regressive behaviors such as bed-wetting, fears,  and use of comfort items. Children may become clingy and whiny and they  may need greater understanding of their moods and behavior. They have a  greater need to be nurtured. They may think they have to “take care” of  their parents. Giving up one’s childhood to care for emotionally  troubled parents is a widespread characteristic in children of divorce.
    • These behaviors are common for children experiencing divorce. There  is a false assumption that children are “naturally resilient” and can  “get through” a divorce with little or no impact on their lives.  Instead, they need support systems and individuals to help during the  transition.
       
  • Epstein Credits
    A legal doctrine that provides for reimbursement for payments of community property debt. See also WATTS CREDITS.
     
  • Family Law
    Family  Law in California is the area of Civil Law devoted to marriage,  divorce, custody of children, support, domestic violence, division of  property and adoption.
     
  • Family Law Attorney
    An attorney who practices with emphases on family law.
     
  • Filing
    Giving the court clerk your legal papers and paying the court filing fees.
     
  • Financial Counselor
    The  financial professional acts as a neutral party on the collaborative  team who assists both spouses in gathering all the financial information  about themselves as well as the community they have built together in a  supportive and nurturing environment. By working with a financial  neutral, the couple is encouraged to work together to compile the  expenses, assets, and debts of the family, with the focus of an overall  picture of their financial situation. Through this process both spouses  become better educated about the extent of their assets and debts, the  options available to them, and how they can each achieve their financial  goals.
     
  • Financial Planner/Financial Advisor/Estate Planner
    Certified  professionals who work in the accounting, insurance, or investment  fields and are able to advise as to the range of options available to  the family and each spouse, and as to the long-term effect of each  option. They can also facilitate retirement planning, long-term  financial investment and life insurance needs.
     
  • Financial Specialist
    The  financial professional acts as a neutral party on the Collaborative  team who assists both spouses in gathering all the financial information  about themselves as well as the community they have built together in a  supportive and nurturing environment. By working with a financial  neutral, the couple is encouraged to work together to compile the  expenses, assets, and debts of the family, with the focus of an overall  picture of their financial situation. Through this process both spouses  become better educated about the extent of their assets and debts, the  options available to them, and how they can each achieve their financial  goals.
     
  • Grounds For A Divorce
    As California is a no-fault state, almost 100% of all divorces filed are based on irreconcilable differences.
     
  • Guardian Ad Litum/Minor’s Counsel
    Guardians  Ad Litem in California are generally special attorneys who represent  the interests of the minor children in divorce. The parents of the  children are usually responsible for paying the fees of their child’s or  children’s specially appointed attorney. The attorney representing a  child/children in California focuses on the best interests of the minor  or minors being represented and is neutral to the parents and their  attorneys. Sometimes the minor’s attorney may express what he or she  believes is in the best interest of the minor(s) although what the  attorney proposes to the court may not be the first choice of the  minor(s).

 

  • Home State
    The  state where a child or children of the marriage lived with a parent for  at least six months before a child custody, support or visitation  action was filed in court.
     
  • How To Get A No-Fault Divorce
    Process as follows:
     
    • At least one spouse decides to end the marriage and complies with the requirements of no-fault divorce.
    • A Petition and Summons are drafted with any other required forms  such as a child custody jurisdiction form, to open the divorce case.
    • Declarations of Disclosure including individual Income and Expense  Declarations and a Schedule of Assets and Debts are drafted and  exchanged.
    • The parties submit proposals, meet and confer, seek the advice of  other professionals, and enter into agreements to include in their  Marital Settlement Agreement or Stipulated Judgment.
    • Once agreements are reached, the attorneys draft the Settlement  Agreement or Stipulated Judgment, and other forms to complete the case.
    • After review and revisions, the parties and their attorneys sign a  final draft. All final agreements are filed with the court, without the  necessity of a court appearance. However, if a court appearance is  scheduled, the parties and their attorneys may appear in court, submit  their Judgment, ask the court to sign it, and even terminate their  marital status if the parties have completed their six-month waiting  period after filing and serving the Petition and Summons.

 

  • Innocent Spouse Rules
    The  IRS rules that protect one spouse from the other spouse’s tax fraud or  other tax-related misconduct. This is a defense that can be raised with  the IRS against the tax liability on a joint tax return if the spouse  did not know about the income and it would be unfair to hold that souse  liable.
     
  • Irreconsilable Differences
    The legal grounds for no-fault divorces.
     
  • Irretrievable Breakdown
    The legal grounds for no-fault divorces.
     
  • Joint Custody
    There  are two parts to every custody order in California, including the legal  custody and the physical custody. Joint legal custody is a shared  custody by both parents to make the major decisions together regarding  their children’s health, education and well being. Joint physical  custody is a shared parenting plan in which the child or children spend  considerable time living at each parent’s residence. It is common for  couples who share physical custody to also share legal custody, but not  necessarily the other way around.
     
  • Judgment
    A court’s decision.
     
  • Jurisdiction
    The  authority given to a court to try cases and rule on legal matters  within a particular geographic area and/or a certain types of legal  cases. It is vital to determine before a lawsuit is filed which court  has jurisdiction. In California you must be a resident for a minimum of  six months in the state, and three months in any specific county before  filing for a dissolution of marriage (divorce).
     
  • Legal Custody
    Most  parents who have been married to one another share the legal custody of  their children as they are used to raising and sharing their children  together. When parents have never been married, have never lived  together, or where domestic violence is prevalent in the parents’  relationship, it may not be in the children’s best interest for their  parents to share decision making. In that case, the primary residential  parent will usually make the important decisions and report them to the  other parent.
     
  • Legal Document Assistant  (LDA)
    See PARALEGAL.
     
  • Legal Seperation
    A  legal process, which allows spouses to live separate and apart while  remaining legally married. A legal separation results when the parties  separate and a court rules on the division of property, alimony (spousal  support), child support, custody and visitation but does not grant a  divorce. This is not very common. There are situations where spouses  don’t want to divorce for religious, financial, or personal reasons, but  do want the certainty of a court order declaring they are legally  separated, and addresses all the same issues that would be decided in a  divorce.
     
  • Marital Property
    Includes  most property acquired during the marriage, even if it is not titled as  joint, or community property. It is any property acquired during the  marriage by the skill or talent of either party.
     
  • Marital Settlement Agreement
    A  Marital Settlement Agreement is a written document that includes the  divorcing spouses’ rights and agreements regarding the division of  assets and other property, the repayment of debt and monies owed to  creditors, and the awarding of spousal support, child support, and the  assignment of legal and physical custody of the children. The Agreement  is most often negotiated out of court and then submitted to the court  for signature by the judge and filing into the legal record.
     
  • Marriage And Family Therapist
    A  licensed mental health professional who could be a Marriage and Family  Therapist, a Psychologist, or Social Worker trained in the assessment  and treatment of emotional, personality and/or relationship  difficulties. The therapist may function to help a person move through  the transitions of the divorce process. A therapist can help individuals  when they are facing emotions that may be overwhelming and interfering  with day-to-day functioning. The therapist may also assist a client  dealing with underlying core issues that are being triggered and  surfacing due to being in the dissolution process.
     
  • Master
    A  person appointed by the court to carry out an order of the court, such  as selling property or mediating child custody cases. A judge reviews a  Master’s decision before becoming final. A “special” master differs from  a “master” in that he/she takes positive action rather than just  investigating and reporting to the judge.
     
  • Mediation
    A  process of resolving disputes in which a trained, neutral facilitator  (mediator) helps the parties work out solutions and agreements together.  The mediator cannot give either party legal advice, strategize, or  advocate for either side. If each party is consulting with a lawyer,  their respective lawyers may or may not be present at the mediation  sessions. If the lawyers are not present, the parties can consult with  their respective attorney between mediation sessions. When an agreement  is reached, the mediator may prepare a draft of the settlement terms for  review and revision by both parties and their lawyers. If mediation  doesn’t result in a settlement, the parties may choose to use their  consulting attorneys in litigation, if they and their lawyers agree.
     
  • Mediator
    A  neutral, impartial facilitator who is trained in negotiation, conflict  resolution, and communication skills. The mediator does not represent  either party or take sides, nor does the mediator act as an attorney,  judge, coach, or therapist. The mediator explains the mediation process  to the parties, and assists divorcing couples to clarify issues,  concerns, interests, needs and values. The mediator suggests or brings  in various professionals to the mediation as needs arise.
     
  • Military Divorce
    Military  divorce is defined as a divorce where one of the parties (the “service  member”) is active duty military, reserve or guard, or retired military.  This is not a legal term that is recognized within the context of the  law, but a lay term used to describe a divorce where one of the parties  is a service member (regardless of the member’s status.) Being a service  couple does not exempt the parties from the same requirements that  civilian couples must meet when filing for divorce. However, military  service creates unique issues when it comes to divorce because certain  rules apply in military divorces that are different from civilian  divorcees. Among the differences are:
     
    • Compliance with military rules and regulations
    • Obtaining service upon an active duty spouse
    • Domicile or residence requirements for filing
    • Division of the military pension
    • Military divorces are governed by a combination of federal and state  law. Federal law dictates the distribution of a military pension and  certain emergency child support orders. State laws mandate the handling  of all other matters pertaining to a military divorce.
       
  • Moore/Marsden
    When  one spouse owns a residence at time of marriage, and during the  marriage title is transferred to husband and wife jointly as community  property, then separate and community property interests in the  residence may accumulate. A formula developed in the case known as Marriage of Marsden (1982) 130 Cal.App.3d 426) can calculate the mixed separate and  community property interests. Credits for the premarital appreciation of  the residence as separate property to the original owner can also be  determined per Marriage of Moore (1980) 28 Cal.App.3d 366). The  formula developed from these two cases is often referred to as  “Moore/Marsden.” The formula developed from these two cases is somewhat  complicated. An accountant may be helpful to accurately determine the  separate property and the community property interests in the residence.
     
  • Motion
    A  formal request to the court, usually made to a judge for an order or  judgment. Motions are made in court all the time for many purposes: to  continue (postpone) a trial to a later date, to get a modification of an  order, for temporary child support, for a judgment, for dismissal of  the opposing party’s case, for a rehearing, for sanctions (payment of  the moving party’s costs or attorney’s fees), or for dozens of other  purposes. Most motions require a written petition, a written brief of  legal reasons for granting the motion (often called “points and  authorities”), written notice to the attorney for the opposing party and  a hearing before a judge. However, during a trial or a hearing, an oral  motion may be permitted.

 

  • No Fault Divorce
    No  fault divorce describes any divorce where the spouse suing for divorce  does not have to prove the other spouse did something wrong. All states  allow divorces regardless of who is at “fault.” To get a no fault  divorce, one spouse must simply state a reason recognized by the state.  In California, it is enough to declare that the couple cannot get along.  This goes by such names as “irreconcilable differences,” or  “irremediable breakdown of the marriage.”
     
  • No-Court Divorce
    Also  called non-court divorce, or divorce without court, no court divorce  refers to the Collaborative approach to divorce. Rather then turning the  decision-making power over to a judge, control of the Collaborative  resolution is kept with the people directly involved in the dispute. All  of the parties consent in writing to be part of a respectful process  that leads to an out-of-court resolution. The clients retain the power  to create a resolution that fits their particular needs and priorities.  The focus is on constructive problem solving rather than adversarial  bargaining and court-imposed solutions.
    Benefits of no court divorce:
     
    • Keeps control of the process with the individuals
    • Avoids going to court
    • Uses a problem-solving approach
    • Identifies and addressees interest and concerns of all
    • Provides for open communication
    • Encourages mutual respect
    • Emphasizes the needs of children
    • Allows divorce with dignity
    • Prepares individuals to move forward
    • See also COLLABORATIVE DIVORCE, COLLABORATIVE PRACTICE, COLLABORATIVE PROCESS.
       
  • Non-Custodial Parent
    The spouse who does not have primary physical custody of his or her child or children.
     
  • Non-Marital Property
    Property that belongs to only one spouse and won’t be included in any equitable distribution of property. See SEPARATE PROPERTY.
     
  • Notice
    The formal legal process of informing one spouse about a legal action or proceeding involving him or her.

  

  • Order
    A court’s ruling or decision on a certain matter or legal issues, usually a decision on a motion filed by one spouse.
  • Paralegal
    Paralegals  are trained professionals who perform a variety of tasks to support  lawyers, including maintaining and organizing files, conducting legal  research, and drafting documents. In California, Independent Paralegals  are required to register with the County in which they are working. Most  Paralegals have an Associates Degree or a certificate in paralegal  studies.
     
  • Paternity Test
    A test proving the identity of a child’s biological father through scientific methods.
     
  • Pendente Lite
    Temporary  arrangements for custody, child support, child visitation, alimony, use  and possession of the family home, etc., until a final hearing.
     
  • Pereira
    A  method of valuing a separate property business begun by a spouse prior  to marriage which attributes all or most of the appreciation in the  value of the business to community property efforts when the  spouse/owner of the business exerts substantial efforts to the daily  operation of the business during the marriage. (Pereira v. Pereira (1909) 156 Cal.App.1)
     
  • Petition
    A legal paper that starts a case.
     
  • Physical Custody
    The  right of a parent to have his or her child(ren) living in his or her  home. California commonly awards joint physical custody to both parents  when the child spends significant amounts of time with both parents.  Joint physical custody works best if parents live relatively near to  each other, as it lessens the stress of their children and allows them  to maintain a somewhat normal routine. Where the child lives primarily  with one parent and has visitation with the other, the parent with whom  the child primarily lives will generally have primary physical custody,  with the other parent having specific custodial times.
     
  • Plaintiff
    The  individual person (party) who initiates a lawsuit by filing a complaint  with the clerk of the court against the defendant demanding damages,  performance and/or court determination of rights.
     
  • Positional Bargaining
    This  type of negotiations strategy is based on fixed, opposing viewpoints  (positions) and tends to result in compromise or no agreement at all  (impasse).   Often, compromises do not efficiently satisfy the true  interests of the disputants. Instead, compromises simply split the  difference between the two positions, giving each side half of what they  want. Creative, integrative solutions achieved through interest-based  negotiations or interest-based bargaining, on the other hand, can  potentially give everyone what they seek.
     
  • Prenuptial Agreement
    Also referred to as a PREMARITAL AGREEMENT. A  contract signed by the spouses before the marriage setting out each  spouse’s rights to property and assets in the case of a divorce.
     
  • Pro Per/Pro Se Representation
    Pro  per clients can represent themselves in court proceedings without an  attorney present. Pro se is Latin meaning “for self.” Pro se litigants  are individuals who represent themselves rather than being represented  by lawyers. In most states, individuals and lawyers file forms in court  called “appearances.” The appearance forms advise the court who will be  representing the parties so the court can communicate with the  individuals or their representatives. Lawyers cannot appear in court or  sign court documents on behalf of clients unless an appearance form has  been filed.
    In the Collaborative Practice model, the parties file pro per  appearance forms and their individual lawyer assists them with the  paperwork and filing. This facilitates an essential term of the  Collaborative Divorce; namely, adversarial lawyers will replace the  Collaborative lawyers if the Collaborative Process cannot achieve  resolution. The adversarial lawyers will then file their appearances in  court and proceed to litigate the case.
     
  • Qualified Domestic Relations Order (QDRO)
    A court order giving one spouse a share of the other spouse’s pension or retirement funds.

 

  • Reconciliation
    When a couple decided to cease the divorce process at any stage and return to their legally married status.
     
  • Religious Annulment
    Within  the Roman Catholic Church, a couple may obtain a religious annulment  after obtaining a civil divorce, so that one or both people may remarry,  within the church or anywhere else, and have the second union  recognized by the Church.
     
  • Separate Property
    Property  or assets that belong to one spouse that will not be included in the  property distribution or division upon a divorce. This describes  property owned prior to marriage, acquired by gift or inheritance, and  earnings and accumulations earned while living separate and apart.
     
  • Separation
    The  terms “divorce” and “separation” are often incorrectly used  interchangeably. A separation is when marriage partners sever their  relationship with the intent of ending the marriage. See LEGAL SEPARATION.
     
  • Service
    Any person, other than the party, providing a copy of the papers filed to the other side.
     
  • Shared Custody
    See JOINT CUSTODY.
     
  • Spousal Support
    Also  called “alimony” and “spousal support maintenance,” this term refers to  money paid to one spouse by another to help the lower earning spouse  maintain a certain standard of living. Spousal support is most common in  situations where one spouse makes considerably more income than the  other.
     
  • Spouse
    In  California, a husband, wife, same-sex or transgender person who enters  into a marital or domestic partnership relationship with another person  who is either a wife, husband, same-sex, or transgender person. The  spouses apply for a marriage license, and then solemnize the marital or  registered domestic partnership relationship in a private or public  ceremony.
     
  • Subpoena
    A form issued by the court requiring someone to appear in court and/or bring documents.
     
  • Temporary Support
    Payments made by one spouse to the other for financial support while the divorce action is pending.
     
  • Uncontested Divorce
    When  the defendant does not attempt to stop divorce proceedings and there  are no issues for the court to decide about the children, money or  property. An uncontested divorce is one in which all issues have been  agreed upon by the parties. The parties reduce their agreement to  writing and it is presented to a Judge at the final hearing.
    An uncontested divorce can be achieved by the parties working on  their own or through mediators and Collaborative lawyers as well as  lawyers working in the traditional context. Often cases which are  contested on one or more issues end up being uncontested when the  parties settle after a period of adversarial litigation. The vast  majority of divorce cases are settled by agreement, but what happens in  the course of litigation prior to the settlement can be damaging to  family relationships and resources.
     
  • Van Camp
    A  method of valuing a separate property or business established by a  spouse prior to marriage which attributes all or most of the  appreciation in the value of the business first to separate property,  rather than community property; when the business is more of an  investment, and the spouse/owner of the business spends little time in  the business operation. (Van Camp v. Van Camp (1921) 53 Cal.App. 17).
     
  • Venue
    The  proper or most convenient location for trial of a case. The venue in  civil cases including divorce is usually the district or county which is  the residence of a principal defendant. The parties may agree to a  different venue for convenience (such as where most witnesses are  located).
    Venue should not be confused with “jurisdiction,” which establishes  the right to bring a lawsuit (often anywhere within a state) whether or  not it is the place that is the most convenient or appropriate location.
     
  • Visitation
    The non-custodial parent’s right to spend time with his or her “legal” child or children.

 

  • Watts Credits
    A  legal doctrine that provides for reimbursement to the community for  exclusive use of community property (often the family home) by one  spouse. Also see EPSTEIN CREDITS.
      
  • Zealous Advocacy
    In  the zealous advocacy model, lawyers are taught to argue for the best  result they can get for a client, without regard to how it affects or  damages others. In theory, if each adversarial attorney pushes as hard  as he can for his or her client, the truth will emerge and justice will  result.
    This model may be necessary and effective in criminal law cases, but  in family law cases, zealous advocacy can escalate hostilities and the  family can be injured as a result.