A divorce is a significant, life-changing event. If you’ve decided to take that next step, it’s important to have a general knowledge of some of the divorce terms you’re likely to hear along the way. At Nelson Law Group PC, we believe in educating our clients, which is why we’ve compiled this list of common divorce terms that you need to know.
Click here to read our Ultimate Guide of family law terms, which covers everything from divorce to civil litigation, personal injury, and estate planning.
A
Abandonment — When one spouse disappears with no intention of returning.
Abuse — An act that results in mental or emotional injury, physical injury, or the threat of physical injury. It can also include sexual misconduct or controlled-substance use.
Adultery — The legal term that refers to when one spouse cheats on the other.
Alternative Dispute Resolution — An agreement between spouses that often settles many divorce disputes amicably without having to go to court. ADRs include mediation, collaborative law, informal settlement conference, arbitration, and cooperative law.
Alimony — Also known as spousal support/maintenance. Periodic payments that one party in a divorce pays the other spouse during or after a divorce. Alimony can be agreed upon by the spouses or be court-ordered.
Annulment — Declaring a marriage null and void. Unlike divorce, an annulment means that the marriage is considered to have been invalid from the very beginning and never happened.
Appeal — A formal process that allows a party to request that the case be reviewed to see if there is a legal reason to change the previous ruling. Not every appeal is granted.
Arbitration – Each party presents its position to an impartial third party who renders a verdict.
Arrearages — Also known as being in arrears. When you owe unpaid or overdue payments to a court or former spouse (child support).
B
Best interest of the child — This is a standard the court uses in family law cases to make decisions that have direct impact on a child. This can include decisions on issues of adoption, child custody, conservatorship, possession, and access. The court’s focus is not on who has a better claim to the child but instead on who can better serve the child’s interests.
C
Characterization — A key factor in determining proper ownership of property in a divorce case. In Texas, property is characterized as community property, separate property, or mixed property.
Child custody — A judgment, decree, or other court order that provides for the care, control, and maintenance of a child. A court will typically award custody following a divorce proceeding. A child-custody determination can be a permanent, temporary, original, or a modified court order.
Child-custody determination case — A judgment by the court that sets in place legal custody, physical custody, or visitation of a child. The judgment can result from a suit to establish conservatorship of a child, a suit for possession of or access to a child, or a suit to terminate the parent-child relationship.
Child custody evaluation — An investigation or assessment that explores the safety and welfare of a child. It is performed by a court-appointed official, such as a mental health expert, who does a deep dive evaluation of the family and makes a recommendation to the court regarding conservatorship. When performing this evaluation, the evaluator is looking out for what is best for the child, including whether or not one or both parents have the ability to raise the child, have created a stable home, and have future plans to raise the child.
Child support — An ongoing, periodic payment made by a parent for the benefit of a child following the end of a marriage or other relationship. It is paid from one parent to the other to help care for the child. To determine the structure of these payments, an order is obtained from the court requiring one or both parents to pay for a child’s financial and medical support.
Child support (Current) — This is an obligation imposed on a parent to support the child for a period of time following entry of a final judgment.
Child support (Medical) — In a suit for child support, the court may be required to award medical support for a child, which is a lump-sum payment or series of periodic payments made to cover the child’s medical expenses. Those expenses can also include health insurance coverage. Medical child support must be awarded if periodic payments of current child support are ordered.
Child support (Retroactive) — These are child support payments awarded for past care of a child. In other words, it’s monies owed to the supporting parent as well as funds owed to the supporting parent to discharge the nonsupporting parent’s proportionate duty of financial support to the child.
Child Support (Temporary) — The court can award temporary child support for safety and welfare purposes. It can last until the court enters a final judgment in a suit for child support.
Collaborative law — Parties to this Alternative Dispute Resolution agree in advance that their lawyers will be disqualified from representing them in court if the matter they have submitted is not completely resolved by agreement.
Commingling — When marital and non-marital property is mixed together during a marriage.
Co-Parenting — The relationship between divorced spouses who not only share the responsibility of caring for their children but must also work together and be positive in thoughts and actions.
Cooperative law — Both spouses and their attorneys agree in writing to use their best efforts to make a good-faith attempt to resolve their dispute on an agreed basis, provide full, voluntary disclosure of all financial information, avoid formal discovery procedures, use joint rather than individual appraisals, and use interest-based negotiations.
Commingling — This is a term applied to funds from each spouse that have been mixed over the course of a marriage. A perfect example is when both spouses’ wages are deposited into the same bank account.
Common-law marriage — Also known as “informal marriage.” A marriage recognized by Texas law between two people who agree to be married and live together as spouses but who have not obtained a marriage license and participated in a marriage ceremony.
Community debts — Financial obligations incurred during marriage. Should a marriage dissolve, courts can divide that debt between the spouses regardless of who is legally obligated under the contract.
Community property — Property acquired or created during the marriage by either spouse, with each spouse sharing equal ownership. In a divorce, all assets and liabilities identified and characterized as the spouses’ community property must be fairly divided between the spouses.
Condonation — The act of forgiving a spouse for their wrongdoing that would normally constitute legal grounds for divorce. Condonation is often used as a defense to a divorce.
Confirmation of separate property — When a court is asked to “confirm” property, it is merely awarding separate property to each spouse that owns it. This is typically a very easy process unless there is some sort of ownership dispute, in which case the court again will ultimately decide.
Co-tenant spouses — Spouses who, after divorce, are legally considered joint owners or tenants of a particular piece of property. The parties can either remain co-tenants or file a post-dissolution property suit to have a court partition (separate) the community property.
Court order — Written instruction from the court. Following these orders is mandatory.
Custody (legal) — Grants the parent the right to have managing conservatorship of a child. This means the parent can make decisions moving forward regarding the child’s best interest.
Custody (physical) — The ability a parent or non-parent has to provide physical care and supervision of a child. In other words, the child lives with the parents.
D
Deposition — A term used to describe a sworn statement or testimony (such as from a witness) during the discovery phase of a trial that may later be used for court purposes.
Discovery stage — Refers to the timeframe before a trial where a lawyer is gathering as much information as possible to understand all factors of the case and the parties involved. This stage is typically where lawyers will introduce interrogatories.
Dissolution suit — A suit brought before the court to determine the parties’ marital status and division of property. Either spouse can file a dissolution suit.
Division of marital property — When a court “divides” the spouses’ community property, it is essentially giving each spouse exclusive right of possession over a specific piece of property in the divorce decree.
Divorce — The legal end of a marriage.
Divorce (Contested) — A divorce proceeding where separating spouses disagree over one or more issues related to the marriage. Contested cases range from fighting over the most trivial of property to high-stakes decisions such as what is in the best interest of their children.
Divorce (Uncontested) — An uncontested divorce is quicker since both parties don’t have anything they want to argue over and don’t hold each other responsible for the breakdown of the marriage.
Divorce decree — A court’s final ruling and judgment order making a divorce final. A decree also spells out the terms of the divorce, such as support, child custody, division of property, etc.
Docket — Another name for a list of cases for trial or cases that are currently pending.
E
Earnings potential — Refers to what a person could be making if they weren’t intentionally unemployed or underemployed. A court can analyze previous earnings to determine a person’s earnings potential when calculating child-support payments.
F
Financial affidavit — A sworn statement where parties in a case document all financial information, including income, bank accounts, assets, liabilities, and expenses.
G
Grounds for divorce — Reasons for the divorce, which can include irreconcilable differences, adultery, abuse, and more.
Guardian Ad Litem — Latin for “for the suit.” An Ad Litem is independent, neutral, and appointed by a court of law to act in a lawsuit on behalf of another party who is incapable of representing him or herself. Their objective is to protect the best interest of the person they represent.
I
Inception of title and tracing — A spouse can prove ownership of property (items or value) based on the time and manner in which they acquired it. If it happened before the marriage, the property is considered separate. If it happened during marriage, that spouse must also provide proof that it was a gift or part of an inheritance. There are five methods of tracing money (clearinghouse, identical sum inference, minimum sum balance, community out first, and pro rata).
Informal settlement conference — Another form of Alternative Dispute Resolution. These are nonjudicial methods for settling disputes between spouses without involving attorneys. Both parties must agree in advance.
Interrogatories — Refers to a list of written questions sent to the opposing party. The opposing party is required to answer these interrogatories, which can range from basic questions about their background and employment history to more pointed questions about assets, debts, and past drug use. Interrogatories are very important to a lawyer’s strategy.
Intervenors — Anyone who has a justifiable interest in a family law case, whether that be due to monetary reasons or because they have a relationship with a party in the case. Examples of intervenors include a former parent of a child, a guardian, a government entity, or a person with court-ordered visitation rights to a child.
Irreconcilable differences — When a couple says they have irreconcilable differences, they are telling the court that through no fault of either party, the marriage has reached a point where it cannot be saved. Neither party has engaged in any conduct that would constitute an at-fault divorce, such as adultery, abandonment, or abuse. They can no longer live in peace together.
J
Judgment — A court’s final decision.
Jurisdiction — The official power to make legal decisions and judgments. A court generally only has jurisdiction within the boundaries of its state or county. A court cannot render a verdict on a marriage or marital property it has no legal jurisdiction over.
Just and right — This refers to the fair split of community property between divorcing spouses. Unlike some states where community property is split evenly between both spouses, Texas is a community property state. Its courts must divide an estate based on what they feel is fair.
L
Legal separation — Legal separation is an alternative to divorce, though it is not recognized in Texas. Couples who choose this option have been granted a legal separation in the form of a court order, but are technically still married.
M
Maintenance — Another term for alimony or spousal support.
Marital misconduct — Martial misconduct refers to any improper act by one spouse against the other spouse or to the marriage itself. Marital misconduct includes infidelity, bigamy, irreconcilable differences, abandonment, and failure to support, among others.
Marital property law — This law governs the property rights of married people to provide added support and protection while recognizing equality and promoting fairness between husbands and wives. In the United States, marital property laws have evolved into two systems: the community-property system and the common-law system.
Mediation — An impartial third person (mediator) helps open up the lines of communication between divorcing spouses to promote a healthy settlement to their dispute.
Modifications — A request to modify terms of an original court order because of some type of change in the family dynamic. Examples of modification suits can be during custody, visitation, or support agreements. Any changes must be in the best interest of the child.
Motion — A formal request by the parties involved in a court case or their lawyer that asks the judge to rule on or make an order on a specific issue.
Motion to reduce child-support arrearages — If you are in arrears with child-support payments, your former spouse can request that the court take the total amount of unpaid child-support and reduce it to a lump-sum judgment.
N
No-fault divorce — Neither spouse has to prove that the other was guilty of marital misconduct. This is a divorce without fault.
P
Parental alienation — When a party in a child-custody case directly attempts to interfere with the other spouse’s ability to communicate with their child. They can do this by either minimizing or thwarting completely the relationship.
Parental fitness — A court will delve deep into each party’s ability to properly act as a parent to the child. Factors that are addressed include recent past conduct, drug/alcohol abuse and sexual conduct. A court cannot consider marital status, gender, race or religion for each party’s fitness.
Parental rights — A term used to describe reasonable rights afforded to the legal parents of a child. These can include physical custody, visitation rights, and the ability to make decisions that are in the best interest of the child.
Parenting class — In custody cases, the court may require or suggest that the parties involved take a parenting class to help in a variety of ways. This includes helping children deal with divorce and facing issues on how to care for the children.
Petitioner — A party who brings a case (petition) before the court.
Petitionary spouse — In terms of a reimbursement claim, dissolution, or post-dissolution suit, this is the spouse making a formal request of the court.
Plaintiff — A plaintiff is a legal name reserved for a person or group of people in a civil case who initiate a lawsuit in a court of law against an individual or business. It is the plaintiff who is seeking legal recourse, and if successful, a judge will rule in their favor. Petitioner and Complainant are alternative terms for plaintiff used in family law and criminal cases, respectively.
Post-dissolution property suits — A suit between former spouses who remained or became joint owners of a property after a final divorce decree was rendered.
Postmarital agreement — An agreement defining rights and obligations between two people that is entered into during marriage. It helps spouses change the characterization of marital property or convert separate property into community property.
Q
Qualified Domestic Relations Order (QDRO) — The QDRO (pronounced KWAH-droh) is an exception within the Employee Retirement Income Security Act. A QDRO allows for reassignment of benefits to a spouse in a divorce suit without violating ERISA.
R
Reconciliation — Used to describe when spouses reconcile their differences and choose to get back together after they’ve separated or initiated the divorce process.
Respondent — A party who has had a petition filed against them.
Restraining orders — Restraining orders usually come into play during an existing court case such as a divorce proceeding. In this instance, a judge may put a restraining order on one or both parties to set limitations on certain actions. Restraining orders can be temporary or permanent.
Risiduary clause — A final decree may contain a residuary clause that awards one or both spouses title to any community property that is not specifically awarded in the decree. The purpose of such clauses is to ensure that there is no remaining undivided community property after the marriage is dissolved.
S
Separate property — Property that came before the marriage (i.e. one spouse already owned a house, received an inheritance, or property as a gift from a third party). Because the property was owned individually by one spouse and then brought into the marriage, a court cannot legally split ownership.
Separation agreement — Under common law, spouses can enter into separation agreements to specify their rights and duties while living apart but not divorced.
Subpoena — While a summons marks the beginning of a court case, a subpoena comes after a case has begun and requires the person who receives it to provide evidence that is considered important to the outcome of the case. You can still receive a subpoena even if you aren’t directly involved in the case.
Suit to divorce — The most common action filed to dissolve a marriage. It is brought when a spouse decides to end a marriage, whether ceremonial or informal, that was entered into without any legal impediments.
Summons — A summons, also known as a citation, is a court order requiring the person who received it to appear in court, likely because someone has filed a complaint against them in either a civil or criminal case.
V
Visitation schedule — A properly laid out plan for parental visitation time. This can be worked out between the parents of the child or determined by the court.
W
Withdrawal — This refers to a motion that an attorney files at the end of a court case to officially terminate or conclude representation of a client.
Writ of Attachment — If needed, this writ involves having a sheriff or constable go find a child and physically bring them to the court if someone is refusing to respond to a writ of habeas corpus.
Writ of Execution — Creditors seek this to have the ability to seize property to satisfy a pre-existing debt.
Writ of Habeas Corpus — In a possession of a child case, this a court order (writ) that commands an individual who has possession of a child to return or release the child.
Writ of Summons — A legal order requesting that the person it was issued to respond to a complaint, motion, or petition against them.
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