Common Law Terms (The Ultimate Guide)

Common Law Terms (The Ultimate Guide)

At Nelson Law Group PC, we believe in educating our clients. Over the last few years, we have regularly published 18 different posts with a variety of common law terms that you should know. What you will find below is all of those terms in one convenient post.

The law topics below cover the following practice areas: family law, personal injury, civil litigation, and estate planning. These are all areas we focus on at our firm in Flower Mound, TX.

A

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.

Actual care, control, & possession — A person claiming actual care, control, and possession of a child support the child financially and are involved in the child’s upbringing. They provide daily care, seek medical care when needed, and can prove they have general authority to direct the child and have power to make legal decisions.

Actual earnings — Refers to what a person actually makes in income. A court can use either earnings potential or actual earnings to calculate child-support obligations.

Adoption — The act of spouses legally gaining possession and access to a child who does not have a mother and father of their own.

Adoption (Open) — When the birth parents and adoptive parents of a child meet and get to know each other. Their identification and history are not kept a secret, and the adoptive parents have the choice to allow the birth parents to keep visiting their child after the adoption.

Adoption (Closed) — Closed adoption does exactly that — it closes the door on any previous relationship between the child and its birth parents and any potential relationship between the birth parents and the adoptive parents. In closed adoption, the identities of everyone involved are not disclosed. Thus, there is no contact between them.

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.

Adult adoption — The ability someone has to adopt an adult legally.

Adult disabled child — A child who has reached adulthood yet is unable to realistically care for and support themselves because of a mental disability or physical ailment.

Adult name change — Adults choose to change their legal birth names for a variety of reasons, from as simple as a last name change following a marriage or divorce to a full name change because of religious and political beliefs. Once a name change is approved, you can use it for all legal purposes.

Agreement in consideration of marriage — This type of agreement is different from a premarital agreement in that it is made in consideration of marriage, even if the marriage never takes place.

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.

Appreciation — An increase in the value of property due to market fluctuations or natural growth.

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).

Assets — This is something that directly contributes to someone’s wealth, including real and personal property.

Associate court — A member of a judicial panel who is not the presiding judge over a particular case. An associate judge’s responsibilities are similar to a presiding judge but are appointed rather than elected and have fewer administrative responsibilities.

Attorney General — The principal legal officer who represents a country or state in legal proceedings and gives legal advice to the government. One of the roles of the Attorney General is to act as the child-support enforcement agency. The AG can file a parentage suit and has the ability to challenge the validity of genetic testing in a parentage suit.

B

Basic needs — Refers to the basic needs of a child covered by child support. This can be anything from food and shelter to school fees.

Berry Formula — This formula is used when benefits are not fully matured. The interest is calculated by dividing the number of months the parties were married during employment by the total number of months the participant spouse was employed at the time of dissolution. The resulting percentage represents the community estate’s interest in the benefits.

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.

Beyond a reasonable doubt — A standard of proof specific to criminal cases that involves an immensely higher standard of proof — especially when the court is dealing with the facts in a murder or burglary case. At the end of the day, you must prove that the only logical explanation based on the facts is that the offending party committed the criminal act.

Breach of contract — If a person does not adhere to the terms and conditions of a contract they have signed, they are said to be in breach of contract. Intentionally or unintentionally breaching a contract is never a good thing and can lead to you being sued or having to pay monetary damages to the offended party.

Burden of proof — This is the burden that falls on the shoulders of someone who brings a case to court. It is that person’s responsibility to produce sufficient evidence to support their case. Burden of Proof is required in practically every court case, and the amount needed depends on the case.

C

Ceremonial marriage — A formal marriage that complies with the statutory requirements listed in the Texas Family Code for obtaining a marriage license and participating in a marriage ceremony.

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 abuse — Any physical harm, threat of serious injury, emotional abuse, or neglect to a child. Child abuse can happen through both action and failure to act.

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-Placement Agency — A child welfare agency that places children in foster homes for temporary care or in prospective homes for permanent adoption.

Child neglect — The act of leaving a child in a situation of substantial risk of physical or mental harm. There can be a myriad of scenarios where neglect is obvious, including leaving a child alone and having no intention of returning or not providing food, shelter, or seeking medical treatment for injury or sickness.

Child’s preference — A court will take into consideration the child’s wishes, including which parent they prefer to be the primary caregiver when looking out for the best interests of a 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 enforcement case — This is any case or action that results from someone who is obligated to make child-support payments but falls behind on payments or refuses to pay. The court can enforce payments or take adverse action against the non-paying spouse, including suspending his/her drivers license, placing a lien on their property, or sending them to jail.

Child-support lien — Another form of recourse for a court that is dealing with someone who is in arrears on their child-support payments. If payments aren’t recovered, a lien can be placed on that person”s home.

Child support suits — Can be filed as an independent suit or together with another suit such as one for dissolution, conservatorship, or parentage.

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.

Civil no-contact order — A no-contact order is designed to protect the requesting party from unwanted sexual conduct or stalking by someone else (co-worker, stranger, neighbor, etc.).

Claim for fraud on the community — This is when one spouse is accused of unfairly or improperly disposing of community property. There are two types of fraud on the community: constructive fraud and actual fraud.

Claim for reimbursement — This arises when one marital estate (community or separate) contributes benefits to another estate, and the contributing estate wants to be reimbursed for those contributions. An example is when one spouse uses his or her own money to pay off the other spouse’s credit card debt.

Clear and convincing evidence — Proving that a particular fact is more likely to be true. In other words, there is a higher probability that what you are saying is true and can be backed up by evidence or through expert testimony. This standard is relied on for many civil cases.

Cohabitation agreement — Entered into by two people who do not want to get married or who cannot get married legally but wish to live together. It enables the couple to define their rights and obligations.

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.

Collateral — Something pledged as security for repayment of a loan, such as a house or a car. If the person with the debt defaults on the loan, they can forfeit ownership to the collateral.

 Collusion — An illegal act where two or more people agree to bring false charges against the other to obtain a specific result.

Contempt of court — This is when you disobey a court. A person can be held in direct contempt by disobeying a judge in his presence or indirect contempt by violating a court order.

Continuing Exclusive Jurisdiction— Also known as CEJ. Refers to the exclusive right a court has to continue overseeing and acting on a final custody order if any modification requests are made in the future. Only a court with CEJ can modify an existing order.

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 state — Texas and eight other states use the community-property system, a regime under which most property or belongings acquired during a marriage are considered jointly owned by both spouses and are divided upon divorce, annulment, or death.

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.

Consent Order — A court order that has been agreed to by all parties involved in the case.

Consent not required — Unlike implied consent, a physician can make the call to provide treatment to a child even if the parents or legal guardians refuse to give consent.

Conservator — A conservator is a person appointed by a judge to manage the financial affairs and/or daily life of a child (Managing/Possessory). This person makes decisions on behalf of the child. The following people can seek appointment as a conservator: parent, competent adult, The Texas Department of Family and Protective Services, and a licensed child-placing agency.

Conservatorship suits — This family lawsuit establishes exactly who the court will name as a conservator. It determines certain rights and duties for that conservator, including who will have legal custody, physical custody, and visitation.

Controlling order — Multiple child-support orders cannot be in effect at the same time. When they do exist, courts must choose which order is the controlling order based on a variety of factors, including CEJ and where the child lives.

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.

Conveyance — When property is legally transferred from one person to another.

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

Debtor spouse — A spouse who is listed as the owner of a particular debt.

Default jurisdiction — This type of court jurisdiction only comes into play if courts in all other states have declined jurisdiction to make a child-custody determination.

Defined-Benefit plans — An employer generally agrees to pay an employee a monthly defined benefit from the date of retirement until the employee dies. A defined-benefit plan can still be considered qualified even if the plan makes distributions before retirement to employees who are 62 or older. A defined-benefit plan usually makes payments to participants with an annuity, which is a stream of monthly payments that continue until some date is reached or some condition is met (usually until the death of the participant).

Defendant — A defendant is the party in a civil or criminal case who has been accused or charged with committing an offense against the plaintiff. Just like it is the plaintiff’s job to prove their case, defendants must defend themselves against the formal accusations brought against them. Respondent is an alternative term for defendant used in family law cases.

Defined-Contribution Plans — In a defined-contribution plan (example: 401k), both the employee and employer contributes money or stock to an individual account held in the employee’s name. The contributions are usually based on a percentage of the employee’s salary while the value of the employee’s account will depend on the amount of contributions made, plan and income expenses, and the gains and losses of the account’s investments. The employee gets the full balance of the account upon retirement.

Department of Family and Protective Services — The DFPS is responsible for investigating charges of abuse, neglect, and the exploitation of children.

Dependent — A person who is financially or emotionally supported by another person. In most cases where the term dependent is used, it is referring to a child or spouse.

De Novo — When a party in a case appeals a decision made by one court, they have the option of requesting that another court try the case again. This is called a de novo hearing, which is Latin for “anew” or “beginning again.”

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.

Discharge by sale — When a court orders (with or without the parties’ consent) the sale of community property to pay off the community debts. For example, a husband and wife could be ordered to sell their real property and use the proceeds to pay their federal income tax debt.

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.

District court — A trial court that has jurisdiction within a specific district. It is the lowest level of U.S. Federal Court. Both civil and criminal cases are filed in a district court.

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.

Documentary evidence — Evidence that is concrete, such as a signed promissory note or a canceled check, that cannot be refuted and can be used as clear and convincing evidence.

Domestic Relations Order (DRO) — Any judgment, decree, order, or court-approved settlement that relates to the marital property rights of a spouse, is made under a state’s domestic-relations law, and contains certain statutorily required information.

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.

Employee Retirement Income Security Act (ERISA) — Designed to protect employees from squandering their benefits or putting themselves in a position where they can have those benefits seized by creditors.

Encumber — By encumbering separate property, a court is placing an equitable lien on it to secure a benefit the separate property received under a reimbursement claim.

Establishing a claim — When a spouse believes the court should be aware of any extenuating circumstances involving the division or confirmation of a particular piece of property, he or she can submit to the court any valid evidence that supports that claim.

 Estate — A legal term used to describe all the money and property owned by a particular person, especially after they have died.

Estate planning — The act of preparing a person’s money and property to be transferred to another entity or person(s) after his or her death. This includes any life insurance, pensions, cars, personal belongings, and debts.

Equitable defenses — When one spouse cannot be reimbursed for contributions if they displayed improper or unfair conduct. For example, a husband who filed a claim could have it denied based on his abuse of his daughter and control of his spouse’s financial independence.

Expert testimony — Testimony used during a divorce case to help establish the character of property. This comes from any qualified person who has expert knowledge in a particular field. A perfect example is a certified public accountant.

Executor — A person who has been put in control of a person’s estate to handle all the logistics for the transfer of assets. Their duty is to carry out the instructions and wishes of the deceased.

 F

Fair Market Value — The price a particular piece of property will bring when it is offered for sale. This applies to all forms of real property (residential, commercial, and unimproved, as well as mineral interests). Some property such as cash and bank accounts are easy to put a value on because of their face value. Other forms take a little more work to calculate. This can involve using state-certified and licensed real-estate appraisers to find comparable sales.

Family law — A type of law that deals with domestic-related issues including marriage, divorce, adoption, child custody and support, and paternity. It can also include wills and estates, contracts, child abuse, finance and anything that is directly or indirectly related to families.

Family violence — An act by a member of a family or household against another member that is intended to result in, or is a threat that reasonably places the other member in fear of, physical harm, injury, assault, or sexual assault. It also includes abuse by a family member on a child of the family and dating violence.

Fiduciary — A person who holds legal or ethical relationships of trust with another person or group of people. Spouses have a fiduciary responsibility to one another and their children.

Filing as head of household — A spouse can only file as head of household if that person’s spouse was not a member of the household for the previous six months, the household is the primary residence for a child whom the taxpayer is entitled a dependency exemption, and if the taxpayer furnished over one-half of the cost of maintaining the home.

Final protective orders — A protective order usually comes into play in family violence and domestic abuse cases. Basically, someone (example: a spouse) believes their life is in danger, whether because of physical abuse, harassment, stalking, or some other threat. A protective order is issued for the protection of the victim, whether the violence has already happened or is likely to occur. Any violation of a protective order can result in civil and criminal consequences.

Financial affidavit — A sworn statement where parties in a case document all financial information, including income, bank accounts, assets, liabilities, and expenses.

Financial instruments — Financial instruments are bank accounts, negotiable notes, and annuities.

Foreign Protective Orders — These orders are still enforceable, though it is very clear they originated or were issued in another state.

Foreclosure — This is when property is taken from an owner who cannot make payments.

Foreign court — A court that does not have jurisdiction to rule on a certain claim. For example, a court cannot technically rule on a partition suit that involves a piece of property that is not in that court’s jurisdiction.

Foreign state — Refers to the state a child may have lived in for an extended period of time but is not the state where the court that rendered an order has jurisdiction.

Friend of the court — An individual or entity who wishes to, or is appointed by a court, to provide legal information or action that can influence the outcome of a case. They are not a party in the suit, nor have they been solicited by a party in the suit. Their existence is merely to aid the court in delivering a just and right outcome.

Future needs — As opposed to existing needs, future needs account for an increase in healthcare expenses to additional personal supervision.

G

Genetic testing — A test that analyzes a person’s genetic markers to determine who is or is not a child’s biological parent. Any party can ask the court to order genetic testing, and such testing can play a pivotal role in a parentage suit due to its extremely high level of accuracy and reliability.

Gestational agreement — A contract between two intended parents and a third party (a gestational mother) who is willing to give birth to a child. Unlike a surrogate who provides her own eggs and is artificially inseminated with the sperm of the intended father, a gestational mother has no genetic connection with the child. The child is conceived from the eggs and sperm of the intended parents or a donor.

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.

H

Habeas Corpus — The is the legal recourse in which a person can report an unlawful decision made by the court (example: false imprisonment based on bad information).

Holding out — A term to describe a couple who are in a common-law marriage. After agreeing to be married, the parties must make it known to others through their conduct and actions that they are married. In other words, there is no such thing as a secret informal marriage.

Hold harmless — A clause in a legal contract stating that an individual is not liable for any injuries or damages caused to the individual signing the contract. This can be used in the case where one spouse owes a debt and can sign to have the other spouse held harmless in paying it back.

Homestead — A place where a family makes its home, including the property itself and the land it is attached to. A homestead is considered someone’s primary residence, meaning that they live there the majority of the time as opposed to a vacation home. Two types are urban homestead and rural homestead.

Home state — Refers to the state a child was born in and resides.


I

 Inability to care — A parent can opt to have the parent-child relationship severed if they believe they are unfit to care for a child because of their own physical or mental problems.

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).

Indigent — Refers to someone who is found by a court to be financially unable to pay court costs and attorney fees. A court will appoint a public defender or other attorney to represent him or her.

Implied consent — Implied consent to medical treatment is invoked when a child’s parent or legal guardian is not available to give consent, especially if the child has life-threatening injuries. In that situation, the law presumes consent would be granted by the parent or legal guardian.

Inconvenient forum — Refers to a court’s decision to not preside over a particular case. Courts have the ability to refuse to make a final legal decision that directly impacts a case inside their jurisdiction if they believe another court will be a more convenient option.

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.

In Rem Jurisdiction — A legal term used to describe the exercise of power by a court over property or a “status” against a person over whom the court does not have jurisdiction. In Rem Jurisdiction assumes the property or status, not to person, is the object of the action.

Intended parents — Two people who seek out someone else (known as a surrogate or gestational mother) when pregnancy is medically impossible or presents a danger to the mother or child. The intended parents are to be considered the legal parents of the child upon birth.

Intentional unemployment or underemployment — Refers to when a person is qualified to be employed but chooses not to work or accepts a job making less money than before. Examples include quitting a job, being laid off or fired and not seeking a new job, working part-time when full-time options are available, or quitting a job and going to a different career making less money.

International child abduction — Often perpetrated by parents who feel as though they should have equal possession and access rights. The court must account for this possibility, especially if there is a reasonable expectation it could happen.

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.

Intrinsic value — In the event a piece of property has no fair market value, such as household goods, clothes and other personal property, the court can use intrinsic value. This is the actual monetary value a property’s use to the owner has, excluding any sentimental considerations.

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.

Juror misconduct — Refers to when a member of a jury commits an act that goes against the law of a court during a case or after the court has reached a verdict.

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

Laches — Bars a petitioner from bringing a suit if the respondent can prove the petitioner unreasonably delayed asserting his/her legal rights and the respondent changed his/her position in good faith to his/her detriment because of the delay.

Last Will & Testament — A legal document that allows a person to detail out in writing how they wish to have their assets distributed upon their death. It is a crucial piece to estate planning, as it eliminates the threat of having the family and friends you leave behind go through any unnecessary complex legal processes.

Legalese — Formal language and terms used in the legal system that is often difficult for the layperson to understand.

Legally binding — Used to describe the terms and legal ramifications of a signed contract between two or more parties. When a contract is signed, all parties are legally bound to following through with or completing the conditions set forth in the contract.

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.

Legal verification — A declaration under oath or upon penalty of perjury that a statement or pleading is true. False information given in a verified legal pleading is subject to penalties for perjury.

Levy — Unlike a lien, which uses property as security for a debt, a levy is a legal seizure of your property (real or personal) to satisfy a debt. This can include garnishing your wages, pulling money from your bank account, selling your vehicles, etc.

Liability — A \ person’s legal responsibility to another person (example, a spouse or child) or society as a whole. Liability is enforceable on a civil basis and through criminal punishment.

Lien — A legal claim that uses your property as collateral until you as the property owner satisfy a debt. If the property is your homestead, for example, you cannot sell or refinance without first paying the debt in full. Types of liens are IRS liens, mechanics liens, or judgment liens.

Life insurance policies (privately-purchased) — Whole life or term policies that do not build up cash value and are purchased by an individual. They are subject to characterization.

Life insurance policies (Employer-provided) — Purchased by a spouse’s employer. These may or may not be able to be characterized as community property depending on how they are set up.

Litigant — A person who is involved in a lawsuit.

Living Trust — A legal document through which assets are placed into a trust that will later be transferred to designated beneficiaries when you die.

Living Trust (Revocable) — One of many estate planning documents available to people who want to ensure their family’s needs are protected after they are die. A revocable living trust determines who will get your property and can be changed as often as needed during your lifetime.


M

Maintenance — Another term for alimony or spousal support.

Marriage license — A document issued by the state that authorizes a couple to get married. Individuals who want to enter into a ceremonial marriage must obtain this from the county clerk.

Married, filing jointly — This is when spouses fill out a single federal income tax return with all income included. Both spouses are jointly liable for the full amount of taxes due on their combined incomes, even if the income was completely earned by one spouse.

Married, filing separately — Spouses file separate returns, and in doing so, a spouse is personally liable for the federal income tax on that return. However, because Texas is a community-property state, each spouse is still liable for one-half of the community income and for any separate income earned by that spouse.

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.

Material or substantial change — Changes to the family dynamic that are significant enough that they could directly impact a child’s best interest if a modification to an original court order is not completed. Examples can include but are not limited to a change in a child’s needs, guardian scheduling conflicts due to a new job or loss of job, or a change in residence.

Maternity and Paternity testing — Maternity tests involve the DNA testing of a woman to determine if that person is the biological mother. Paternity tests involve the same testing for the biological father.

Mediation — An impartial third person (mediator) helps open up the lines of communication between divorcing spouses to promote a healthy settlement to their dispute.

Meretricious relationship — The “un-marriage.” A relationship between two people that does not meet the requirements of a ceremonial marriage, common-law marriage, or putative marriage. In a meretricious relationship, neither person has a good-faith belief that he or she is entering into a marriage relationship.

Mixed property — Property is considered mixed when it consists of both separate and community property. For example, when both separate and community funds are used to purchase property – such as a house.

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.

Modification rule (3 year) — A modification suit can be approved without having to prove a change in the family dynamic so long as the request is made within three years of the original order being rendered or last modified and the monthly child-support payments don’t differ by more than 20 percent or $100 from the original order.

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.

Motion to withdraw — A written request to a judge asking that the lawyer assigned to the case be relieved of his or her duties. The request must include the specific reason for withdrawing.

Movant — A spouse or party who makes a motion (official request) to a court.

Multiple child-support orders — When two or more child-support orders exist at the same time.

Mutual mistake — A defense for a respondent spouse where they can assert that both parties made a mistake. If the respondent can prove the property was not divided by the property settlement agreement due to a mutual mistake, the respondent can ask the court to reform the agreement instead of partitioning the property.


N

 Necessaries — The basic necessities in life that one spouse should expect as support from the other during marriage. Necessaries vary depending on the circumstances of a particular case or where a couple is at in life, but are typically things like food, clothing and shelter.

 Notice of appeal — This is a legal document that requests an appeal to a case.

Notice of hearing — This is a legal document that requests the presence of all parties to hear a motion. The notice will also include the time and date for that hearing.

O

Obligee — The person an obligated party is bound to.

Obligor — A spouse or party responsible for paying the former spouse (child-support payments).

Offsetting benefits — In response to a reimbursement claim, a respondent spouse can claim that the petitioning spouse received benefits from their contribution. Examples include use and enjoyment of the property or tax benefits and other offsets such as salary, bonuses, or dividends.


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.

Power of Attorney (Regular) – A legal document through which you give someone the authority to make decisions on your behalf. A regular POA is only valid until you become incapacitated.

Parentage suit — This suit is used to establish the existence of a parent-child relationship. It promotes equal treatment of the children of married and unmarried parents and establishes rights and responsibilities for each parent. A parentage suit is also necessary before things like custody or child support can be ordered.

Partition by sale — The court can legally order community property – in this case, real property – be sold so that the proceeds can then be divided between spouses. Usually this happens when it is not possible to do an in-kind partition.

Partition in kind — The term “in kind” means that the property is divided, fairly and justly, between the spouses. Depending on the property in question, the court can award property outright to one spouse, divide the property into separate shares, or award joint ownership.

Partition suit (Family Code) — When a court legally separates community property. Under the Family Code, a court can partition only property that was not ruled on by a court in a final dissolution decree. The property must be partitioned in a just and right manner.

Partition suit ( Property Code) — Another method for a court to legally separate property. Under the property code, any jointly-owned property can be partitioned, but generally the property must be partitioned equally.”

Perfected — This is when one creditor has priority over any current and future unsecured creditors and later-perfected secured creditors. In other words, the money owed to your spouse should be handled first, before any other creditors are paid.

Perfecting a lien — This gives third parties notice that you have a security interest in a property. It could also affect the priority of a lien if there are multiple liens on a property. The purpose of perfecting a lien is to be able to seize and sell the property in order to satisfy the debt.

Personal effects — Refers to items of personal property that are used or are usable primarily by the person to whom they are related. This includes clothes, jewelry, toiletries, glasses, etc.

Personal jurisdiction — Personal jurisdiction means the court can settle matters affecting spouses who live in the same territory or state as the court. If the court has personal jurisdiction over the spouses, the court also can only act on marital property that is located within the state.

Personal property — If real property is defined as anything attached to land as well as the land itself, then personal property is everything else. What we’re talking about here are bank accounts (shared or individual), insurance policies, furniture, fixtures in the home, and stocks. Other types of personal property can include vehicles, boats and collectibles, antiques, books and pensions.

Petitioner — A party who brings a case (petition) before the court.

Petitioner’s burden — This refers to the obligation placed on a petitioning spouse to prove by way of clear and convincing evidence that their claim is justifiable. An example is establishing that a piece of community property existed when the marriage was being dissolved and that the property was not divided or considered by 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.

Plea in abatement — When a defendant does not dispute a plaintiff’s claims in a case but instead objects to its form or the time or place where it is asserted. The defendant is asking the court to consider these factors during the sentencing phase.

Plenary power — When a trial court has complete and absolute power to take action or render a judgment on a particular issue without limitations, that court is said to have Plenary Power. A trial court’s over-arching power comes with a time limit.

Police discretion — Police discretion is the latitude officers have to decide on their own if they want to act on a specific situation (i.e., make an arrest) they weren’t there to see with their own eyes or take a step back and avoid making what could be an unnecessary arrest. Depending on the circumstances, police discretion is perfectly fine.

Police mandatory decisions — The opposite of discretion. A police officer who, for example, witnesses someone commit an act of family violence or has violated a court order must take immediate action.

Power of Attorney (Durable) — A legal document through which you give someone the authority to make decisions on your behalf. A durable POA grants the agent powers even after you are unable to make decisions for yourself.

Power of Attorney (Financial) — A financial power of attorney is more concerned with determining who you want to be in charge of managing your finances in the event you become incapacitated. This grants the person access to your bank and investment accounts and gives them the ability to pay bills (including medical expenses), transfer and sell your assets, etc.

Power of Attorney (Medical) — A medical power of attorney is more concerned with determining who you want to be in charge of making healthcare decisions if you become incapacitated. A medical POA does not take effect until the day you are considered legally incapacitated. At that point, the person in charge can make decisions for you that range from medical treatment and medications to tests, potential surgeries, and possible transportation to a rehabilitation or long-term care facility. In the event you pass away, the medical power of attorney is no longer valid.

Prenuptial agreement — A legal and binding agreement between spouses that is executed prior to marriage. It creates clearly-defined rights and obligations for each spouse. A prenup is not mandatory according to law.

Preponderance of the evidence — A party has to show that something was more likely to have occurred when compared with the evidence from the offending party. In other words, the evidence from one side carries more weight, even if there is only a 51 percent likelihood that it is true.

Presumed father — A man who is recognized as the father of a child. This is typically the case if he is married to the mother and the child is born during the marriage, he married the mother before the birth of the child, or he lives in the same household as the child.

Premarital agreement — An agreement that creates clearly-defined rights and obligations – much like a contract – for couples who are about to get married. Premarital agreements are not mandatory.

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.

Probate — A legal process that resolves claims and distribution of a deceased person’s property in a will.

Promissory note — The promissory note is a legal agreement between you (the debtor spouse) and your spouse (creditor spouse) that details out the specific parties involved, the amount owed, and the payment terms.

Property liability — A financial obligation attached to property rather than an individual. In this case, property can be seized and sold to satisfy a debt, and it is not contingent on a spouse’s personal liability.

Protective orders — A protective order usually comes into play in family violence and domestic abuse cases. Basically, someone (example: a spouse) believes their life is in danger, whether because of physical abuse, harassment, stalking, or some other threat. A protective order is issued for the protection of the victim, whether the violence has already happened or is likely to occur. Any violation of a protective order can result in civil and criminal consequences.

Public’s best interests — The public’s best interest factor must be satisfied to complete a name change request for a minor. The biggest, and perhaps only, reason is if the child whose name is to be changed is subject to requirements under the sex offender registration. The court can grant the name-change request if the change is in the public’s best interest AND if it is in the child’s best interest. The petitioner must provide the court proof that the child has notified the appropriate local law enforcement in the county the child lives.

Putative marriage — A marriage entered into in good faith by one person – referred to as the innocent spouse – but that is invalid because of a legal impediment such as an undissolved earlier marriage.


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.

Qualified Private Retirement Plan — A type of retirement plan established by an employer for the benefit of the company’s employees. Qualified retirement plans give employers a tax break for the contributions they make for their employees.

Quantum meruit — When a person sues for money they believe they are owed for services rendered when there is an “implied” agreement between them and another party, a judge can settle the dispute using what is called Quantum Meruit. Think of it as a fair solution for when a person is owed money for services, but there is no legal contract to back it up.

R

Real property — Anything that is attached to land, as well as the land itself. This includes a family home (along with any mortgage obligation), a building, unimproved tracts of land, and mineral interests.

Reconciliation — Used to describe when spouses reconcile their differences and choose to get back together after they’ve separated or initiated the divorce process.

Reimbursement claim — A claim between two divorcing spouses in which one spouse looks to recover contributions made by one marital estate (their own) to the other spouse’s estate. This can include monetary contributions as well as contributions of labor and skill.

Removal of disabilities — A minor can petition the court to have their disabilities of minority — restrictions on a child’s legal capacity — removed before turning 18.

Res Judicata — A latin term meaning a thing adjudicated or settled by judicial decisions. Parties cannot file a second lawsuit once a final decision has been rendered.

Respondent — A party who has had a petition filed against them.

Replacement cost — The cost it would take to replace a piece of property.

Repudiation — Also means denial or rejection of a proposed claim.

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.

Right-of-survivorship agreements — An agreement under which all property included in agreement will become the separate property of the surviving spouse after the other spouse dies.

Right to inherit — Unless otherwise provided in the judgment, a child retains the right to inherit from and through the parent regardless of a termination suit. For example, a child can be the heir of his/her half-sibling born to their mother AFTER their own relationship with the mother had been terminated. Note: This does not include inheriting benefits under the Wrongful Death Act.

Rights of access — In a conservatorship suit, this is a person who has been deemed by the court to have the ability to approach, communicate with, and visit a child. They cannot take possession or control of the child.

Rights of possession — A person with right to possession of a child can exercise possession and control of the child, to the exclusion of all other persons.

Right of survivorship — A surviving spouse’s right to become the owner of all community and separate property after the other spouse dies.

Rights over community property (Sole-management) — This is when a spouse has the exclusive right to manage community property that would have been that spouse’s separate property if they had acquired it while still single.

Rights over community property (Joint-management) — This is community property that each spouse must manage equally. Each spouse must give their consent to any transaction involving this type of property.

Rights over separate property (Sole-management) — This is when a spouse has the exclusive right to manage, control, and dispose of separate property without the other spouse’s knowledge or consent.

Rights over separate property (Co-tenancy) — This is when two people share an undivided present interest in the same property. Each spouse has a present right to enter, occupy, and possess the property.

S

SAPCR — Short for Suit Affecting The Parent-Child Relationship. This suit must be filed separately from a dissolution suit since its primary function is to determine the parties’ rights and responsibilities to a child following a divorce or separation.

Securities — Securities are tradable financial assets such as stocks, bonds, debentures, derivatives, banknotes, certificate of interest, money market, government bonds, and CDs.

Settlement & Release Agreement — A straightforward document that allows parties in a potential case to settle their dispute outside of the courtroom.

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.

Severance — Before trial, a party can file a motion to divide the case into two independent suits. A motion for severance is not meant to separate the issue of divorce from the division of property but rather to separate a specific tort claim from the overall issue of divorce.

Significant-connection jurisdiction — The court’s ability to claim jurisdiction over a child-custody case even if the child has no home state. There are several factors that must be determined before a Texas court can make decisions based on a significant connection, including the parties proving that the child hasn’t lived in another state for six months leading up to the child-custody suit and that the child’s well being (care, protection, relationships) is better served in Texas.

SPO — Short for Standard Possession Order. This is what the court issues to detail out the terms of possession and access. This covers everything from Thursday evenings during the school year to normal weekends and holidays or vacations.

Statute of limitations — Limits how long you have to bring a claim against another person. If you wait too long to file a claim, a judge has no choice but to throw the case out.

Subject-matter jurisdiction — When a court has subject-matter jurisdiction, it can decide on any matters related to the divorce, including the divorce itself and division/confirmation of the spouses’ marital property. This is conditioned upon the court granting the divorce or annulment.

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.

Successor trustee — This is the title given to the person who takes over control of a trust and the distribution of property among beneficiaries as outlined in the trust if and when the initial trustee dies or is unable to uphold his or her responsibilities.

Suit for sibling access — Unlike a conservatorship suit, a suit for access means a person is simply asking to gain access to a child – with “access” meaning they can approach, communicate with, and visit with the child. A person with access cannot possess or control the child like a parent or conservator can. Suits for sibling access can include siblings of any age.

Suit for grandparent possession or access — In winning this suit, grandparents can approach, communicate with, and visit with the child. But more importantly, they would have the right to take possession of the child for limited periods of time outside the presence of the parent or conservator. Essentially, this suit gives the grandparent a right greater than supervised access but less than possessory conservatorship.

Suit to adjudicate parentage — This type of suit can prove that a man who is not presumed, acknowledged, or previously adjudicated is the father of a child or to prove he is not the child’s father. In these suits, the only question is whether the man is the child’s biological father.

Suit for damages — This suit allows a party in a case to seek an award, typically money, for damages they incurred from the offending party. An example is in a superior right of possession case, where a parent can seek monetary relief from the at-fault party for the financial expenses incurred from seeking legal help.

Suit to declare marriage void — This is similar to an annulment, but the legal impediment in this case cannot be cured or waived by the parties to the marriage. A voided marriage has no legal effect at any time and is void at its inception regardless of whether a court declares it so.

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.

Summary judgment — Summary judgments help avoid unnecessary trials by allowing the court to use certain proven facts to reach a verdict on a particular issue without having to go to trial. It is based upon a motion made by one of the parties in a case that contends all necessary factual issues are settled and don’t need to be tried in a court of law.

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.

Superior Right of Possession of a child — The ultimate and final legal right of possession a parent has been granted by the court. For instances where both parents believe they have superior right of possession, one or both can file a petition to the court to make a determination.

Supervised visitation — An arrangement where a parent who has been awarded visitation rights with their child, though it must be supervised by a friend or family member.

T

Taggart Formula — This is a formula used when benefits are fully matured at the time of divorce. The interest is calculated by dividing the number of months the parties were married during employment by the total number of months the participant spouse was employed at the time of retirement. The resulting percentage represents the community estate’s interest in the retirement benefits.

Temporary ex-parte order — A type of protective order. This is used when there is a clear and present danger of family violence. It can be granted without notice or a hearing and is valid up to 20 days.

Temporary jurisdiction — This can come into play if the child involved in the case is present in the same state the court is in and either the child has been abandoned, or the child, a sibling, or parent of the child is threatened with mistreatment or abuse.

Temporary possession orders — When a guardian is offered a change in the original terms of possession for a specified period of time. This can come into play when a parent is away on military duty and misses out on previous periods of possession due to that obligation.

Temporary restraining order/injunction — This is a short-term court order that forbids a party from engaging in a particular action against someone else. These orders can be requested for a variety of reasons when it comes to dissolution suits or SAPCRs.

Termination suit — The goal of this type of suit is to remove a child from a situation where they are being abused, neglected, abandoned, or endangered by one or both parents. It can also be appropriate when a parent voluntarily wishes to relinquish rights.

Texas Department of Family and Protective Services — An organization that provides a variety of protective services for abused children, the elderly, and people with disabilities.

Tortfeasor — Refers to the person who commits a tort (wrongdoing). A tortfeasor is held legally liable for committing a tort against another person.

Tort — A civil wrong inflicted by one person (example, a spouse) on another that unfairly results in loss or injury. Examples of torts include assault, emotional distress and invasion of privacy.

Transferee — A person who receives a transfer of ownership from someone else.

Transferor — A person who transfers ownership of something (title or property) to someone else.

Transfer of ownership — In a divorce decree, a court can order the ownership of certain property be transferred from one spouse to another to create a clear ownership change.

Trusts — An arrangement in which someone’s property or money is legally held or managed by someone else or by an organization (such as a bank) for a set period of time.

U

Unsecured liabilities — Debts that are not secured against collateral. Examples can include credit cards, taxes, interest, utility payments, and judgment debts.


V

Vested — Vested means the participant in a retirement plan is guaranteed to be paid the benefit regardless of future employment.

Verdict — The final decision made in a civil or criminal court case by a judge.

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

Wages (Current) — Wages earned during marriage by a spouse. A spouse’s current wages are only considered separate property if the income was earned before the marriage, even if those same wages were paid during the marriage. Wages earned during marriage are considered community property even if that income is paid after the marriage dissolves.

Wages (Future) — Future wages are expectant; they are not guaranteed and could be impacted depending on a spouse’s post-marital efforts. Therefore, future wages cannot be deemed as community property even if the future wages are earned in part during the marriage. A caveat is if future wages are earned during marriage and they are not contingent on the performance of additional post-marital service, then it is community property.

Willful violation — A deliberate act as opposed to accidental or inadvertent. For example: if one parent actively impedes the visitation rights of another parent in a possession or access case. If the visitation schedule wasn’t clearly defined or there were extenuating circumstances, then that is not a willful violation.

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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