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Glossary Source: Collaborative Divorce Solutions of Orange County
A lawsuit or proceeding in a court of law.
A written statement under oath.
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.
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.
The written response to a complaint, petition, or motion.
A legal action where the losing party requests that a higher court review the decision.
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.
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.
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.
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.
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 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 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.
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.
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).
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.
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 adversarie.
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.
Any asset acquired, or income earned, by a married person while living with a spouse.
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.
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.
See CHILD CUSTODY.
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.
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.
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.
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.
The person a legal case is brought against.
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.
Meaning “to end” or “dissolve.” Often used interchangeably with the world “divorce” as in “dissolution of marriage.” See 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.
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.
See DIVORCE COACH.
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.
A divorce in California starts when the Summons and Petition are filed with the Court.
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.
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.
See 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.
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 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.
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.
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.
A legal doctrine that provides for reimbursement for payments of community property debt. See also WATTS CREDITS.
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.
Giving the court clerk your legal papers and paying the court filing fees.
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.
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).
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.
The legal grounds for no-fault divorces.
The legal grounds for no-fault divorces.
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.
A court’s decision.
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).
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)
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.
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.
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.
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.
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 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.
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.
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.”
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.
The spouse who does not have primary physical custody of his or her child or children.
Property that belongs to only one spouse and won’t be included in any equitable distribution of property. See SEPARATE PROPERTY.
The formal legal process of informing one spouse about a legal action or proceeding involving him or her.
A court’s ruling or decision on a certain matter or legal issues, usually a decision on a motion filed by one spouse.
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.
A test proving the identity of a child’s biological father through scientific methods.
Temporary arrangements for custody, child support, child visitation, alimony, use and possession of the family home, etc., until a final hearing.
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
A legal paper that starts a case.
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.
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.
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.
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.
When a couple decided to cease the divorce process at any stage and return to their legally married status.
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.
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.
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.
Any person, other than the party, providing a copy of the papers filed to the other side.
See JOINT CUSTODY.
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.
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.
A form issued by the court requiring someone to appear in court and/or bring documents.
Payments made by one spouse to the other for financial support while the divorce action is pending.
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.
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).
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.
The non-custodial parent’s right to spend time with his or her “legal” child or children.
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.
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.