Glossary of Legal Terms Commonly Used in Divorce Proceedings

For many of our clients, divorce is uncharted territory. A clear understanding of terminology is essential to preventing misunderstandings or miscommunications. Below you’ll find some terms that are likely to surface. If at any time you are uncertain of words or proceedings, your Fullenweider Wilhite attorney is prepared to answer your questions.

• Premarital Agreement

  An agreement entered into before marriage that sets forth each party’s rights and responsibilities should the marriage terminate by death or divorce. Also called a prenuptial agreement.

• Jurisdiction

  The state or area in which a particular court and system of laws has authority.

• Litigation

  The process of fighting or defending a case in a court of law in front of a judge or jury.

• Maintenance

  Spousal Maintenance is one spouse’s financial support payment to the other, which may be ordered in certain circumstances.

• Mediation

  A settlement process to attempt to resolve a dispute or controversy lead by an independent person (the “mediator”) between two contending parties in order to aid them in the settlement of their disagreement.

• No Fault Divorce

  A divorce that doesn’t require one spouse to prove the other spouse’s fault or misconduct before being entitled to a divorce.

• Notice

  The formal legal process of informing one spouse about a legal action or proceeding involving that spouse and any court hearing during the pendency of the case.

• Order

  A court’s ruling or decision on a certain matter or legal issue, which is signed by the judge.

• Paternity Test

  The test to prove the identity of a child’s biological father through scientific methods.

• Petition

  The first legal document that starts a divorce case.

• Petitioner

  The Petitioner is the person who initiates divorce or marriage dissolution proceedings.

• Possession

  The non-custodial parent’s right to spend time with the spouse’s child or children.

• Post Marital Agreement

  An agreement executed after a couple gets married to settle the couple’s affairs and assets should the marriage fail. Also commonly referred to as a postnuptial agreement.

• Judgment

  A court’s decision, usually a final disposition of all issues is called a Judgment.

• Qualified Domestic Relations Order (QDRO)

  A court order giving one spouse a share of the other spouse’s pension or retirement funds, which is given to the plan administrator for the retirement plan to divide the assets.

• Reconciliation

  When spouses get back together after they separated or started the divorce process.

• Residency Requirement

  The amount of time a spouse must live within a state or county before that spouse may file a divorce action in that state or county.

• Retainer payment

  An upfront deposit paid by the client to retain a law firm in a divorce case.

• Separate Property

  Property or assets that belong to only one spouse, which were acquired before marriage, or through a gift or inheritance. When the separate property characterization is proven, separate property won’t be included in the property division.

• Service

  Providing a copy of legal papers being filed to the other side via an approved method of delivery.

• Settlement conference

  A meeting at which the parties and their lawyers attempt to settle the case. This could be an informal settlement conference with the parties and attorneys or a more formal settlement conference in a mediation.

• Split custody

  Split custody generally refers to a situation when both parents have equal possession time of the child(ren). Parties may agree to a 50/50 possession schedule; however, there is a presumption that there will be one parent to designate the primary residence and the other parent will visit the child(ren) per a Standard Possession Order. If the child issues are submitted to a judge, the judge is not likely to award a split custody possession schedule.

• Spousal support or maintenance

  Financial payments made to help support a spouse or former spouse during separation or following divorce.

• Temporary Support

  Payments made by one spouse to the other for financial support while the divorce action is pending.

• Uncontested Divorce

  When there are no contested issues to submit to the court, the parties may submit their agreement to the judge and finalize the case without a trial.

• Visitation (also called Possession)

  The time that a noncustodial parent spends with his or her child(ren).

• Custody

  In the divorce context, this term is typically used to refer to the parent with the right to determine the residence of the child(ren).

• Alimony

  A contractual payment of financial support provided by one spouse to the other.

• Alternative dispute resolution (ADR)

  Methods of resolving legal disputes without going to trial, in a less adversarial manner, such as through arbitration, mediation, or collaboration.

• Annulment

  A marriage can be dissolved in a legal proceeding in which the marriage is declared void. It is available only under certain limited circumstances.

• Arbitration

  The submission of a dispute to an unbiased third person (or panel) designated by the parties to the controversy, who agree in advance to comply with the award – a decision to be issued after a hearing at which both parties have an opportunity to be heard.

• Arrearage

  The amount of money that is past due for child or spousal support.

• Asset Distribution

  A method of dividing marital property between spouses, which is based on a just and right division (not necessarily an equal or 50/50 division). In Texas, only community property is subject to division and distributions.

• Best Interests of the Child

  Legal standard used to determine children’s issues such as child custody, visitation, and support.

• Child Support

  Money that a non-custodial parent pays to the custodial parent for their child(ren)’s support.

• Child Support Guidelines

  Guidelines established by the Texas Family Code that set forth the manner in which child support must be calculated, generally based on the income of the non-custodial parent, the number of children the non-custodial parent is supporting, and the needs of the children.

• Common Law Marriage

  Texas recognizes informal marriages, also referred to as “common law” marriages. A common law marriage comes about when two adults who are free to marry agree to be presently married, live together as spouses, and hold themselves out as a married couple to others.

• Community Property

  All property acquired by the parties during the marriage that does not qualify as separate property. Separate property is property owned or claimed prior to marriage or property acquired during marriage by gift or inheritance.  There is a presumption that property owned at the time of a divorce is community property. When a spouse has separate property claim, that spouse must prove the character of the property is separate property by a higher evidentiary burden, referred to as “clear and convincing evidence.”

• Contempt

  Failure to follow a court order – one side can request that the court determine that the other side is in contempt and issue a punishment, which can include monetary fines, jail time, or both.

• Affidavit

  An affidavit is a sworn statement by a party or a witness that may be filed with the court during the divorce.

• Decree

  The court’s written final order finalizing the divorce.

• Deposition

  A deposition is a legal proceeding, out of the court room, to record the sworn testimony of witnesses and parties. During a deposition, the person being deposed answers questions under oath and a court report will record the testimony in a transcript. The lawyers may also videotape depositions.

• Discovery

  The information-exchanging process of a legal proceeding, including requests for the production of documents, interrogatories (questions a party has to answer under oath), requests for disclosures (a party states potential witnesses, experts, and legal theories), requests for documents from non-parties, and depositions.

• Dissolution

  Another word for divorce, which is the legal termination of a marriage relationship.

• Divorce

  The legal termination of a marriage relationship.

• Domestic Violence

  Physical abuse or threats of abuse occurring between members of the same household, or parties in a dating relationship.

• Fault-Based Divorce

  Divorce action where one spouse claims that the other spouse’s marital misconduct caused the marriage to end – such as adultery or cruel treatment. There are other grounds. In Texas, a party may file for divorce on a no-fault ground for divorce.

• Filing

  Submitting any legal papers to the clerk affiliated with the divorce court.

• 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.

• Innocent Spouse Rules

  IRS rules that protect one spouse from the other spouse’s tax fraud or other tax-related misconduct.

• Interrogatories

  Written questions served by the opposing party that must be answered in writing under oath as part of the discovery process.