How to Talk Divorce

A side issue of the divorce process is that complex legal arguments and jargon can be intimidating or even overwhelming. That’s why you need to learn how to “talk divorce” through a source of simple definitions for some common legal terms and other divorce jargon.

Throughout the divorce process you may encounter legal terms, accounting jargon, or other confusing words and phrases. The following glossary will help you understand some of the more common terms; it is not intended to provide strict legal definitions.

Adversarial divorce: Divorce where parties involved have conflicting interests and function more as enemies rather than individuals who are working together toward a fair (acceptable and affordable) settlement.

Alimony: Periodic or lump sum support payments to a former spouse. Currently referred to as spousal support. See also Spousal support.

Alimony pendente: Pretrial order for spousal support to provide funds for keeping bills paid until a final divorce agreement is reached.

Annulment: A legal ruling that the marriage is void (that is, in the eyes of the law, it never occurred). Usually obtained on the grounds of fraud by one of the partners or a determination that one of the parties could not legally enter the marriage in the first place. A legal annulment is not the same as a religious annulment; the latter must still be applied for and granted under the rules of the appropriate religious body after a legal annulment or divorce is obtained.

Antenuptial agreement: See Prenuptial agreement.

Appraisal: Procedure for determining the fair market value of an asset when it is to be sold or divided as part of the divorce process.

Assets: Cash, property, investments, goodwill, and other items of value that appear on a balance sheet indicating the net worth of an individual or a business.

Automatic wage attachment: Court-ordered distribution by an employer of a non-custodial parent’s wages to the custodial parent in order to satisfy child support requirements.

Best interests of the child: A discretionary legal standard used by judges when making decisions about custody, visitation, and support for a child when the parents are divorcing.

Bigamy: Criminal offense of entering into a marriage when an earlier marriage has not been legally terminated. In cases where the second marriage was entered into mistakenly by someone who thought a divorce was final, the second marriage is void, but no crime was committed.

Child custody: Refers to matters concerning the living arrangements and right to make legal decisions for a minor child following a divorce. See also Legal custody and Physical custody.

Child support: The amount of money paid by a non-custodial parent to the custodial parent for a child’s day-to-day expenses and other special needs. Custodial services are also considered a form of child support.

Child support guidelines: A series of mathematical formulas that calculate a range of child support money to be paid. Guidelines are based upon traditional custody and visitation arrangements. They do not address equitable financial responsibility when there is shared physical custody or split custody (each parent has physical custody of one or more of their children). Congress has mandated that states adopt child support guidelines and support enforcement procedures.

Clean Hands Doctrine: A legal concept whereby a person’ss complaint against his/her spouse may be discounted by the court if the plaintiff were regarded as having acted in a way that is morally or legally wrong.

COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985): One feature of this federal law mandates that group health insurance plans must allow a divorced or separated spouse to continue coverage under the plan for a specific period after separation or divorce, subject to payment of a premium.

Common-law division of property: Method of dividing marital property based upon who holds legal title of ownership. Most states that originally followed this rule now use equitable distribution. Mississippi is the only state that strictly follows this method of dividing property upon divorce.

Community property: Method of assigning ownership of assets and responsibility for debts acquired during the marriage equally to both spouses. If the court feels that “equal” division is unfair, most community property state courts have the discretion to use “equitable distribution.” Currently, these eight states follow the community property method: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. The Wisconsin system has similarities.

Complaint: A legal document filed by the plaintiff stating that the marriage has ended and listing the grounds and claims of the divorce. Also known as a summons or a petition.

Contested divorce: A divorce that goes to trial before a judge for a court decision on issues that the couple could not resolve.

Contingent wage withholding: A provision in child support orders allowing for automatic wage attachment in the event that child support payments are more than 30 days in arrears.

Custodial parent: The parent with whom a minor child resides and who makes legal decisions for the child (solely or jointly with the other parent) following a separation and divorce. In joint custody, each parent is considered the custodial parent when the child is with that parent.

Defendant: The partner in a marriage against whom a divorce complaint is filed.

Deposition: Written document of testimony given under oath. A pretrial discovery method used by lawyers to obtain information from the opposing side.

Divorce agreement: A legal agreement between a divorcing husband and wife regarding keeping the peace, division of property, spousal support, and responsibility to children.

Divorce ceremony: An informal way for the partners, children, family, friends, and others to acknowledge the ending of a marriage and the beginning of the parting couple’s separate lives. Also called divorce ritual.

Emancipation: The legal status of independence for children of divorcing parents. States recognize an age range from 17-23. Most states recognize 18 years of age as the point where parents have no further legal or financial obligations for a child’s support.

Equitable distribution of property: Method of dividing marital property based on a number of considerations such as length of marriage, differences in age, wealth, earning potential, and health of partners involved that attempts to result in a fair distribution, not necessarily an equal one.

Expert witness: In court proceedings, professional whose testimony helps a judge reach divorce decisions. These experts may work in many areas including mental health, education, and finance (appraisers of home, business, tangible property).

Goodwill: The value of a business beyond its sales revenue, inventory, and other tangible assets; includes prestige, name recognition, and customer loyalty.

Guardian ad litem: An individual, usually an attorney, appointed by the court to advocate the rights and interests of the children in a divorce, most often when the parents are unable to arrange a custody agreement.

Grounds for divorce: Reasons for seeking a divorce, such as incompatibility, mental cruelty, physical abuse, or adultery. While some states allow fault grounds for divorce, all states have some form of no-fault divorce.

Hold harmless: One party assumes responsibility for an existing or potential debt and promises to protect the other party from any related loss or expense.

Immediate wage withholding: A provision in child support orders allowing automatic wage attachment to begin at the implementation of the orders by choice of the payee or by court action.

In camera hearing: Discussion held in the judge’s chambers -- usually to protect privacy about child-related matters.

Injunction: Permanent restraining order. See Temporary restraining order.

Interdisciplinary committee: A group of professionals (including, for example, a lawyer, clergy person, child psychologist, and an educator) that acts as a third party in making decisions for a divorcing couple on issues they can’t resolve.

Joint custody Refers to a custody arrangement shared by both parents. See also Legal custody and Physical custody.

Latchkey children: Children who finish their school day while their parent(s) are still at work. These children may spend part of their day at home alone.

Legal custody: The authority, after divorce, to make legal decisions for a minor child regarding health, education, and general welfare. Can be held solely by one parent or jointly by both parents.

Legal separation decree: Court ruling on division of property, spousal support, and responsibility to children when a couple wishes to separate but not to divorce. A legal separation is most often desired for religious or medical reasons.

Marital property: All property in which either party has an interest, however and whenever acquired (equitable distribution viewpoint) or all property acquired during a marriage, except for property purchased with only the proceeds of separate property or excluded by valid agreement (community property viewpoint). Each state has a slightly different way of determining whether assets that are inherited, received as a gift, or acquired before marriage will be considered marital property. See Community property, Common-law division of property, and Equitable distribution of property.

Mediation: A non-adversarial process in which a husband and wife are assisted in reaching their own terms of divorce by a neutral third party trained in divorce matters. The mediator has no power to make or enforce decisions.

Memorandum of understanding: A document created by divorcing couples to outline the decisions made while clarifying the terms of the divorce including division of assets and liabilities, spousal support, and responsibility to children. When complete, it is used to draw up the formal separation agreement.

Modification and waiver clause: Clause contained in the separation agreement stating that no changes will be made unless made by the court or designated to occur automatically by the original agreement.

Motion for contempt: Filed by an ex-spouse who does not receive support payments when a legal court order for support has been made and the delinquent spouse had the ability to pay at the time of the default.

No-fault divorce: Widely recognized basis for divorce where both parties agree that the marriage has irretrievably ended, eliminating the need for assignment of blame as part of the legal proceedings of a divorce.

Non-custodial parent: The parent who does not have physical custody of his/her children after a divorce and therefore generally is obligated to pay child support to the custodial parent with whom the child resides.

Petition: See Complaint.

Physical custody: Refers to the actual residence of a child following divorce. Physical custody may be solely with one parent, jointly with both (when the child spends alternating periods of time with each parent), or split between the parents (each parent has physical custody of one or more of their children).

Plaintiff: The spouse who initiates the legal divorce process by filing a complaint stating that the marriage is over and listing the grounds and claims against the other spouse.

Prenuptial agreement: A contract signed by a couple before marriage that lists the assets and liabilities each partner is bringing into the marriage and provides a framework for financial limits to rights of support, property, and inheritance after the marriage and in the event of a divorce or death. Also called antenuptial agreement.

Pro se (or pro per) divorce: A divorce wherein the divorcing partners represent themselves in court (with or without a mutually agreeable separation agreement) without the assistance of attorneys.

Qualified Domestic Relations Order: Also known as QDRO (pronounced “quadro”). A court ruling earmarking a portion of a person’s pension fund payments to be paid to his/her ex-spouse as part of a division of marital assets. Payments are made directly by the fund administrator at the time of divorce or at the time the employee’s retirement payments are to begin.

Separate property: Generally considered any property owned before marriage (earned or acquired by gift or inheritance), acquired during marriage by one partner using only that partner’s separate property, or earned after a formalized separation.

Separation: See Legal separation decree.

Separation agreement: The legal document listing provisions for peace between the divorcing couple, division of property, spousal support, and responsibility for children of the marriage. The couple’s agreement or court-ordered terms are part of the divorce decree.

Spousal support: Money paid by one partner to the other for the recipientÕs support following a divorce. Support may be a lump sum or mandated for a specific period of time (long-term or short-term) and is based on the needs of the recipient, ability to pay, and economic differences between the partners. Also called alimony or maintenance.

Stipulation agreement: See Separation agreement.

Subpoena: A court order requiring a person’s appearance in court as a witness or to present documents or other evidence for a case.

Summons: See Complaint.

Temporary restraining order (TRO): A court order intended to prevent one person from harming another (domestic violence cases), taking children (in custody battles), or removing property/squandering assets while a divorce is in process. The court will hold a second hearing to decide if the TRO should be made a permanent order. A permanent restraining order is called an injunction.

Trial: The time when a judge hears the contested issues, with supporting evidence and witnesses, in a couple’s divorce decisions. The judge may take a few hours or a few weeks to review the information presented and issue a court opinion.

Uncontested divorce: Divorce in which the separation agreement is finalized without the need for litigation or a judge’s decisions. The divorcing couple reach an agreement about division of property, spousal support, and responsibility for the children. The court reviews the agreement to determine if the state will consider it fair and reasonable.

Visitation: When one parent has sole physical custody of the children, regular visits with the children are authorized for the non-custodial parent. This right is usually automatic unless there are extenuating circumstances. Parents may work out the visitation schedule or the court will order specific visitation terms.

Uniform Statutes: Uniform statutes are model laws proposed by the Uniform Law Commissioners, a national group of judges, lawyers, and law professors. These models are proposed in areas where consistency, predictability, and uniformity may be desirable for our mobile society. States can adopt them in their entirety, select portions to enact, or reject the statutes altogether.

Family Support Act of 1988: Revises the AFDC (Aid to Families with Dependent Children) program to emphasize work, child support, and family benefits to avoid long-term welfare dependence. In divorce cases, the act provides for automatic wage attachments in all new or modified support orders.

Hague Convention on International Child Abduction of 1986: Establishes a legal right and procedures for the return of children kidnapped across national boundaries. The United States adopted legislation in 1988 supporting the Hague Convention, named the International Child Abduction Remedies Act of 1988.

International Child Abduction Remedies Act of 1988: Establishes the legal right and procedures for the return of children kidnapped across national boundaries, supporting the Hague Convention on International Child Abduction of 1986.

Parental Kidnapping Prevention Act of 1980: Recognizes existing custody orders when a parent flees with a child (interstate or international flight). Provides for the use of a parent locator service for enforcement.

Uniform Child Custody Jurisdiction Act of 1968: Resolves child custody disputes by enforcing existing custody orders (presumably made by the court having the most relevant information about the case) across state lines.

Uniform Interstate Family Support Act of 1992: Supersedes Acts in 1950, 1952, 1958, and Revised Uniform Reciprocal Enforcement of Support Act (RURESA) of 1968. Entitles a state to establish, enforce, and modify child/spousal support and to have its existing support orders enforced across state lines.

Uniform Marital Property Act of 1983: A property law recognizing the contributions made by both spouses during the marriage. The respective contributions are considered defined, shared, and enforceable property rights at the time they are made, making the concept ÒoursÓ a legal reality.

Uniform Marriage and Divorce Act of 1970 (amended in 1971 and 1973): Statute provides uniform standards for governing divorce based upon the concept of no-fault divorce and dividing property in a manner similar to distribution of assets when a business partnership is dissolved. Custody and support provisions emphasize the interests of the children and not the wishes of the parents.

Uniform Premarital Agreement Act of 1983: Provides legal guidelines for agreements before marriage, to take effect upon marriage, about property (ownership, management, control) and distribution of financial value (spousal support, life insurance, wills) upon separation, divorce, or death. Child support provisions are not recognized in a premarital contract.