san diego family law glossary

Family Law Glossary

An overview of the most common legal terms associated with Family Law, Divorce, Child Custody, and Child Support.

The words in this glossary are defined as they are most commonly used in connection with a case dealing with Family Law.

ACTION (Same as Cause of Action.) The legal term for what is commonly called a lawsuit.

AGREEMENT The oral or written resolution of disputed issues that is incorporated into a court order, judgment, or decree.

ALIMONY Spousal Support. Same as maintenance.

ALIMONY IN GROSS Spousal support in a single payment or fixed total sum in periodic installments. Sometimes called lump-sum alimony.

ALLEGATION Statement of facts contained in a pleading, setting forth what the pleader intends to prove.

ALTERNATE PAYEE The spouse receiving retirement benefits as a result of being married to the individual who was employed and participated in the retirement plan.

APPEAL – The process whereby a higher court reviews the proceedings in a lower court and determines whether there was a reversible error. If so, the appellate court amends the judgment or remands the case to the lower court for a new trial.

APPEARANCE – The formal submission by a defendant to the jurisdiction of the court after having been served a summons or knowing that the complaint has been filed. Appearance also refers to the physical presence of a party at a court hearing.

BIFURCATION – The trial of a case in two parts. In the first part, marital status is terminated. The second part consists of the trial on issues involving property division, alimony, child support, custody, or attorney’s fees.

CHANGE OF VENUE – A change of judges before whom the case is to be tried, requested by a party to the action who feels the original judge is prejudiced.

CLAIM – A charge by one spouse against the other.

COMMUNITY PROPERTY – All income and property (regardless of who holds the title) acquired by the spouses during the course of their marriage, with the exception of property acquired by inheritance or gift. The manner of division differs among community property states, but the tendency is toward equal division. (See joint property)

CONTEMPT OF COURT – The willful failure to comply with a court order, judgment, or decree by a party to the action. Also, any willful act by a person, whether or not a party to the action, that interferes with the court proceeding or somehow contravenes the authority or dignity of the court. Contempt of Court is punishable by fine or imprisonment.

CONTESTED CASE – Any case where the court must decide one or more issues that are not agreed to by the parties. All cases are considered contested until all issues have been agreed to.

COST BASIS – The cost of real estate or investment property consisting of the purchase price plus the cost of capital improvements. This combined sum subtracted from the sale price computes the capital gain or loss for tax purposes.

COUNT – A statement of facts in a pleading constituting the pleader’s case or cause of action. A pleading may contain one or more counts, e.g., a count for divorce and count for legal separation. In some cases, the counts are pleaded separately, and in others, they are combined.

COURT ORDER – The court’s written ruling. See order

CROSS-EXAMINATION – The questioning of a witness presented by the opposing party on trial or at a deposition. The purpose is to test the truth of that testimony or to develop it further.

DECLARATION – A written statement of facts made under oath and signed before a notary public or another officer who has authority to administer oaths.

DECREE – The final ruling of the judge on an action for divorce, legal separation, or annulment. Same as judgment.

DEFAULT ORDER OR DEFAULT JUDGMENT – An order or judgment given by the court without the other side’s being heard because they failed to plead within the time allowed or failed to appear at the hearing.

DEPOSITION – The testimony of a witness taken out of court under oath and reduced to writing. The most common depositions are discovery depositions taken for the purpose of discovering the facts upon which a party’s claim is based or discovering the substance of a witness’s testimony before trial. The deposition may be used to discredit a witness if he or she changes testimony. Evidence depositions are used to preserve the testimony of a witness who will be unable to appear at trial.

DIRECT EXAMINATION – The initial questioning of a witness by the attorney who called the witness to the stand.

DISCOVERY – Procedures followed by attorneys in order to determine the nature, scope, and credibility of the opposing party’s claim. Discovery procedures include depositions, written interrogatories, and notices to produce various documentation relating to the issues that are decided in the case. Psychological examinations and court social service investigations are also part of discovery.

DISCRETION OF THE COURT – The area of choice available to a judge to make a legally acceptable decision on his or her interpretation of the evidence.

EMANCIPATION – The point at which a minor child comes of age. Children are emancipated in most states upon reaching the age of either eighteen or twenty-one, or upon marriage, full-time employment, or entering the armed services. Emancipation terminates the duty to support unless a state’s statutes require support for the disabled or for educational purposes, i.e., high school or college.

EQUITABLE DIVISION OF PROPERTY – A system of dividing property acquired by spouses during their marriage in connection with a divorce proceeding. The division is based on a variety of equitable factors, including relative financial contribution, contribution as a homemaker, and respective need. Title to property in the name of either spouse does not necessarily restrict the court’s right to award that property to the other spouse as part of an equitable division.<

EVIDENCE – Documents, testimony, or other demonstrative material offered to the court to prove or disprove allegations in the pleadings.

EX PARTE – The application for court relief without the presence of the other party, because of either a lack of notice or the choice of the other party not to appear.

FOUNDATION – The evidence that must be presented before asking certain questions or offering documentary evidence on trial.

GROUNDS FOR DIVORCE – The legal circumstances that must be proved before a divorce can be granted. California is a “No-Fault” state and only requires a statement that the parties have irreconcilable differences.

HEARING – Any proceeding before the court where testimony is taken or arguments offered by the attorneys for the purpose of resolving disputed issues.

HOLD-HARMLESS – When one spouse assumes liability for a debt or obligation and promises to protect the other from any loss or expense in connection therewith.

HOSTILE WITNESS – A witness who demonstrates so much prejudice during direct examination that the party who has called the witness is allowed to cross-examine. The greater flexibility of cross-examination enables the questioner to ask leading questions and to attack the credibility of the hostile witness.
IMPEACHMENT – The act of proving either by a prior inconsistent statement or other conflicting evidence that a witness is lying.

INDEMNIFICATION – To promise to reimburse another person in case of an anticipated loss; the same as hold-harmless.

INJUNCTION – A court order forbidding someone from doing a particular act that is likely to cause physical or mental injury or property loss to another party.

INTERLOCUTORY DECREE – A judgment of the court that is not final until the passage of a certain period of time. During the interlocutory period, the parties cannot remarry.

INTERROGATORIES – A series of written questions served upon the opposing party in order to discover certain facts regarding the disputed issues in a matrimonial proceeding. The answers to interrogatories must be under oath and filed within a prescribed period of time.

JOINT PROPERTY – Property held in the name of more than one person. (Also called community property and marital property.)

JUDGMENT – The order of the court on a disputed issue; same as a decree.

JURISDICTION – The power of the court to rule upon issues relating to the parties, their children, or their property.

LEGAL SEPARATION – A cause of action for support while the spouses are living separate and apart; in many states, this is called separate maintenance. Actions for legal separation provide for the maintenance, child custody, and support but generally do not provide for the division of property. A decree of legal separation does not dissolve the marriage and does not allow the parties to remarry.

LEVERAGE FACTORS – Particular considerations, based on the priorities of the parties, that induce them to settle disputed issues. The skillful employment of these factors generally controls the outcome of a settlement.

LUMP-SUM ALIMONY – Spousal support in a single payment or fixed total sum paid in periodic installments. Sometimes called alimony in gross.

MARITAL PROPERTY – accumulated income and property acquired by the spouses during the marriage, subject to equitable distribution by the court. States will vary on their precise definition of what is to be included in marital property, sometimes excepting property acquired by gift or inheritance. (See community property or joint property)

MISTRIAL – A trial that is terminated before its completion, as the result of the occurrence of some fundamental error that would render the trial invalid. Following a mistrial, the case must be tried again from the beginning.

MOTION – A written or oral application to the court for some particular relief, such as temporary support, injunction, or attorneys’ fees.

NO-FAULT DIVORCE – A marriage dissolution system whereby divorce is granted without the necessity of probing one of the parties guilty of marital misconduct.

NONMARTIAL PROPERTY – The term given to property owned before the marriage or acquired during the marriage by gift or inheritance in some equitable distribution states. The same as separate property.

ORDER – The court’s ruling on a disputed issue requiring the parties to do certain things or setting forth their rights and responsibilities. The order is reduced to writing and may be signed by the judge and filed with the court by agreement, without the necessity of a court hearing.

ORDER OF PROTECTION – State courts provide broad injunctive protection to abused, threatened, harassed, or exploited individuals, their children, and their property by issuing Orders of Protection against the abuser. Petitions for Orders of Protection can be filed in civil or criminal courts. Violations of these orders can be prosecuted as crimes in criminal court or as contempt of the civil court.

ORDER TO SHOW CAUSE/TEMPORARY MOTIONS – An application to the court for interim relief pending the final decree of divorce, legal separation, or annulment. Typical temporary motions include motions for temporary alimony, child support, attorneys’ fees, custody, visitation, enforcement, or modification of prior temporary orders. The court enters a temporary order after hearing a temporary motion.

PARENS PATRIAE – A doctrine whereby the state will take jurisdiction over any minor children living within its borders. This doctrine is the basis upon which certain states will assume jurisdiction in child custody disputes, even though a divorce action was decided or is pending in another state.

PERSONAL JURISDICTION – The power of the court to order a spouse to do a particular thing, such as pay alimony or child support.

PETITION – The initial pleading in an action for divorce, legal separation, paternity, or annulment, setting forth the allegations upon which the requested relief is based. I called a complaint in some states.

PETITIONER – The party who files the lawsuit. Same as the plaintiff.

PLAN PARTICIPANT – The employed spouse who participates in the retirement benefits plan that is subject to division by a Qualified Domestic Relations Order upon divorce.

PLEADING – Formal written application to the court for relief and the written response thereto. Pleadings include complaints, answers, petitions, responses, motions, and all counter pleadings.

PRAYER – That portion of a pleading, usually at the end, which specifies the relief requested of the court.

PRIVILEGE – The right of a spouse to make admissions to an attorney, clergyperson, or psychiatrist that is not later admissible in evidence.

QDRO – The stands for Qualified Domestic Relations Order, the means provided under federal law (ERISA) to divide retirement benefits between spouses involved in a domestic relations (marriage dissolution, support, or separation) proceeding.

QMCSO – This stands for Qualified Medical Child Support Order, the means provided under federal law to require group health insurance companies to provide health coverage for the children of an insured parent going through a divorce.

REBUTTAL – The introduction of evidence at a trial that is in response to new matter raised by the defendant at an earlier stage of the trial.

RELIEF – Whatever a party to a lawsuit asks the court to do: dissolve the marriage, award support, enforce a prior court order or decree, divide property, enjoin certain behavior, dismiss the complaint of the other party, and so on.

RELOCATION – The term used to describe cases where the custodial parent seeks court permission to move the residence of a minor child from the state where the divorce or last custody order was entered. Also referred to as move-away cases.

RESPONDENT – The one who defends the lawsuit brought by another. Same as the defendant.

RESPONSE – The pleading filed in answer to the allegations of a petition. The response may also allege affirmative defenses to those allegations.

RULES OF EVIDENCE – The rules that govern the method of presentation and admissibility of oral and documentary evidence at court hearings or deposition.

SEPARATE PROPERTY – The term given to property owned before the marriage or acquired during the marriage by gift or inheritance in community property and some equitable distribution states. The same as nonmarital property.

SETOFF – A debt or financial obligation of one spouse that is deducted by the court from the debt of financial obligation of the other.

SETTLEMENT – The agreed resolution of disputed issues.

SETTLEMENT AGREEMENT – The settlement reduced to a written document.

STATUS QUO – The existing state of things; leaving the things as they are without modification or alteration. “Things” can be anything from visitation arrangements to property rights.

STIPULATION – An agreement between the parties or their counsel, usually relating to matters of the procedure.

SUBPOENA – A document served upon a person who is not a party to the action, requiring him or her to appear and give testimony at a deposition or court hearing. A subpoena is normally accompanied by a witness fee ser by statute, as well as a mileage fee for transportation costs to and from the place to which the individual is subpoenaed. Failure to comply with the subpoena could result in punishment by the court.

SUMMONS – A written notification to the respondent that an action has been commenced against him or her and requiring that the respondent appears within a specified period of time to answer the complaint.

TEMPORARY MOTIONS/ORDER TO SHOW CAUSE – An application to the court for interim relief pending the final decree of divorce, legal separation, or annulment. Typical temporary motions include motions for temporary alimony, child support, attorneys’ fees, custody, visitation, enforcement, or modification of prior temporary orders. The court enters a temporary order after hearing a temporary motion.

TESTIMONY – Statements under oath by a witness in a court hearing or deposition.

TRIAL – A formal court hearing to decide disputed issues raised by the pleadings.

VACATED – When a court order, judgment, or decree is somehow defective, it is vacated- that is, eliminated- and either a substitute order is entered or a new hearing is granted, which will ultimately result in a new order, judgment, or decree.

WITHOUT PREJUDICE – Orders, judgments, and decrees that are entered without prejudice can be modified at a later tie without the necessity of proving a material change in circumstances justifying the medication. Orders are normally entered without prejudice by agreement rather than as a result of a court hearing.


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