Divorce Law G-Z

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G

Garnishment; Wage Assignment; Wage Attachment. A court order to a third party, usually an employer, requiring the employee’s wages to be attached (automatically deducted from a paycheck) and assigned (paid) to another party, usually the wife. Most states favor attachment for support payments. It avoids late or missed payments and saves court time. Fewer contempt of court actions are filed. A “contingent” or “suspended” wage assignment requires the completion of appropriate forms, and does not become active unless, and until, payments are missed. This is a strong inducement for your spouse to stay current on his payments.
Grandparent Visitation. See Visitation, Grandparent
Ground(s) for Divorce. Each state’s divorce statutes set forth certain improper or troublesome behavior that constitutes a “legal reason” for the court to grant a divorce. The following list, based on Massachusetts law, is for illustrative purposes only. Each term has a legal definition which may differ from commonly used English. Your state may 1) not recognize all the grounds set forth, and 2)may include other grounds. Consult local resources. See Fault and No-Fault Divorce.
1. Adultery
2. Cruel and abusive treatment
3. Utter desertion
4. Long-term incarceration
5. Gross and confirmed habits of intoxication
6. Non-support 7. Impotency
8. Irretrievable breakdown of the marriage (no-fault)
Guardian ad Litem (“G.A.L.”). A court-appointed individual who, for the purpose of pending litigation, puts himself in the shoes of a legally incompetent person such as a minor child. He also investigates the matter and files a report with the court.
G.A.L.s are usually lawyers or mental health professionals, depending on the court and circumstances. They investigate the matter, use their own judgment in determining the “best interest of the child,” and report their findings and recommendations to the court. In contested custody and visitation matters, courts frequently appoint G.A.L.s for the children. If a G.A.L. is appointed in your case, treat him respectfully - return phone calls and be cooperative. Don’t alienate the G.A.L. despite any resentment you may harbor. It will only hurt your children. Courts sometimes appoint an attorney for the child(ren). Unlike the G.A.L. who uses her independent judgment, the appointed attorney promotes the stated wishes of the child. In other words, she takes orders from legal incompetents. See Attorney for the Child(ren).

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H

Hague Convention on the Civil Aspects of International Child Abduction. See Parental Kidnapping.
Hearing on the Merits. See Trial; Hearing on the Merits; Evidentiary Hearing.
Hold Harmless; Hold Harmless Agreement. The contractual assumption of certain liabilities by a party who agrees: 1) not to look to the other party for assistance in satisfying such liabilities, and 2) to defend (“indemnify”) the other party against third party claims, if a third party, say a creditor, sues you. If your spouse agrees to indemnify you, he will defend any actions against you including paying your attorney fees, court costs, and damages against you, if any are awarded.

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I

Impeach; Impeachment of Testimony. Discrediting a witness by proving lies, inconsistencies in stories told, and untrustworthiness. The witness may be impeached during cross-examination or by the direct testimony or evidence of another witness. See Direct and Cross Examination. Prior inconsistent statements made at a deposition or in written interrogatories are classic examples of impeachment during cross-examination. In Camera Hearing. A closed-door hearing in judge’s chambers, usually concerning sensitive child-related issues.
Infant. A person who has not reached legal majority, usually 18 years of age. Also, referred to as a “minor,” or unemancipated child.
Inheritance; Inheritance Rights; Inheritance Expectancies. In equitable distribution states, inheritance rights, say from your parents, can be considered by the court. Note that most inheritance “rights” are mere expectancies, i.e., they are not vested since you may be disinherited. As a practical matter, even if the court takes into account expectancies, they are generally not given much weight, especially if one’s parents are healthy. Courts avoid placing an economic value on assets of uncertain worth that may or may not be received upon some uncertain future date.
Injunction; Injunctive Relief. A court order prohibiting certain activity. See Temporary Order; Temporary Restraining Order
Injunctions are generally “negative,” i.e., they prohibit certain activities. Injunctions which require certain activity are called “affirmative” injunctions. Outside divorce, most injunctions are “negative.” It would be impossible to enforce certain affirmative orders, such as requiring an opera singer to sing. Affirmative injunctions are more common in divorce cases especially since they relate to minor children, often covering to visitation. Property-related injunctions are also common, usually restricting the sale or transfer of property, borrowing, and spending on non-necessities. See Restraining Order.
Innocent Spouse; Innocent Spouse Rule. Section 434(c)(1) of the Internal Revenue Code protects an “innocent spouse” from tax liability if certain conditions are met:
1. A joint return was filed
2. The return contained a “grossly erroneous” error
3. The innocent spouse establishes “lack of knowledge
4. In light of all the “facts and circumstances” it would be “inequitable” to impose the tax on the innocent spouse
Interlocutory Hearing. Any court hearing at which a pretrial order or ruling is requested.
Interlocutory Judgment; Interlocutory Decree; Judgment Nisi. The initial judgment of divorce. When courts grant divorces, their judgments are not final until the expiration of a statutory “waiting period” known as the interlocutory or nisi period. It begins when the interlocutory judgment enters and ends upon the “final judgment,” “judgment absolute,” or “final decree.” State law varies greatly in this regard, so check with counsel. Despite your judgment of divorce nisi or interlocutory decree, you are still legally married and cannot remarry until the judgment becomes “final” or “absolute.” Also, during the interlocutory or nisi period, your spouse has the right to inherit from you unless a separation agreement waiving such rights was executed. Check with counsel if you are feeling mortal.
Our misguided legislatures, in an effort to save obviously failed marriages, require this waiting or “warming-up” period in the highly unlikely event the parties reconcile. We have heard of “cooling off” periods before gun purchases, but our lawmakers are unrealistic if they think a warming-up period can save marriages after an interlocutory judgment. Besides, it would be easier for parties to remarry than stop the clock on an interlocutory judgment.
Interlocutory Order. See Temporary Order; Temporary Restraining Order
Interrogatories. See Discovery; Pretrial Discovery
Intestate; Laws of Intestacy. A person who dies without a will is said to die intestate. State laws of intestacy establish who inherits, and in what percentage. Surviving spouses usually inherit the entire estate except in the case of surviving children who are entitled to usually two thirds, while the surviving spouse inherits the remaining one third. Rules vary from state to state.
Investigator; Court Investigator. A person appointed by the court, usually to investigate child-related matters, and file a report with the court. Unlike the Guardian ad Litem, the investigator does not “stand in the shoes” of the minor child(ren).
Irretrievable Breakdown. The legal grounds for no fault divorce in most states. The court must be convinced, i.e., find, that the marriage has “irretrievably broken down” and that there is no chance of reconciliation. If your case is uncontested you may have to sign an affidavit stating that the marriage is “irretrievably broken down.” It is filed along with your joint petition and separation agreement before an uncontested, no-fault divorce is granted.

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J

Joint Custody. See Custody, Legal and Custody, Physical
Joint Petition. When both parties want the court to do the same thing, such as “dissolve a marriage” due to an irretrievable breakdown (no-fault) and approve a separation agreement (uncontested), the parties jointly request (by joint petition) the court to grant the divorce.
Joint Property. Property held in the name of both spouses. Except in Mississippi, legal title is usually not relevant in dividing property. Basically, one spouse can’t say, “honey, the property is in my name, so you don’t get any.”
Judgment. See Decision and Judgment
Judgment Absolute; Final Judgment. See Interlocutory Judgment; Judgment Nisi
Judgment of Divorce; Judgment of Divorce Absolute. See Divorce Decree
Judgment Nisi. See Interlocutory Judgment; Interlocutory Decree; Judgment of Divorce Nisi
Judicial Separation. See Legal Separation
Jurisdiction. The court’s legal authority to hear your case and issue legally enforceable orders and judgments. Usually, the court in the county where you last lived together has jurisdiction over the divorce. If one party permanently leaves the state, both states may have jurisdiction. Ask you lawyer about this tricky area of jurisprudence.

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L

Legal Custody. See Custody--Legal
Legal Ethics. See Ethics; Legal Ethics
Legal Separation; Separate Support; Separate Maintenance. Available in some states, a legal separation is similar to a divorce, except no divorce judgment is granted that ends the marriage.In response to a complaint for legal separation or separate support, the court may provide remedies relating to property (in some states) and support. Generally, a complaint for divorce or annulment is necessary before a court orders a final property division. Also called judicial separation.
Lien; Spousal Lien on Marital Property. See Attachment

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M

Maintenance. See Alimony
Malpractice (Legal). The improper or incompetent behavior of your attorney. Violations of the Cannons of (Legal) Ethics often constitute legal malpractice. “Mandatory Factors” (to be Considered by the Court). The factors a court must consider before making a final decision relating to property division and alimony. Some states also have “discretionary factors” a court may consider. See Equitable Distribution.
Marital Assets; Marital Property; Marital Estate. See Equitable Distribution and Community Property
Marital Agreement; Marital Settlement Agreement. See Agreement
Marital Tort. See Tort; Marital Tort; Domestic Tort
Marriage Certificate. The official certification (with raised seal) of your marriage issued by a public entity. Make sure you have an official copy with a raised seal; religious certificates are generally unacceptable. Contact the city or town where you were married or your state.
Master. See Special Master
Mediation. An informal, voluntary process allowing parties to work with a neutral third party (the “mediator”) to develop a separation agreement. An agreement developed with a mediator is said to be a “mediated agreement.” Where appropriate, mediation is an excellent way to develop a separation agreement. Remember, the process is voluntary, so if either party refuses to continue, the mediation is terminated. Mediation requires cooperation and communication between the parties. You must trust each other financially to make full disclosure of each other’s financial condition and future earnings opportunities. Each party has his or her attorney review the agreement before it is signed. Mediators are not marriage counselors, but may help you develop a parenting plan. We advise our clients to go this route where appropriate, but mediation is not suitable for everyone. Interestingly, more men are satisfied with the result than women who tend to believe that they would have done better before a judge.
Memorandum of Law. A legal document filed along with pleadings or other court papers setting forth your lawyer’s legal research in support of a request to the court.
Modification, Complaint for. The legal, post-divorce procedure to change or modify a separation agreement, or the court’s earlier decision and judgment. Most states allow modification of prior agreements or decisions/judgments based on any unanticipated “material change of circumstance.” For example, your child requires extraordinary medical expenses or you become permanently disabled, and these events were unanticipated at the time of the original judgment. Certain types of agreements, “surviving agreements,” are written to bar any future modification. The rules are technical and vary among states. Public policy suggests that all child-related issues should be modifiable.
Motion. A written request asking or “moving” the court to grant a temporary order, or rule on a legal matter. Motions are either “contested” or, if the parties stipulate to the matter, “uncontested.” Motions are usually heard at a special motion or ex parte “session” of the court. Legal fees for contested motions are expensive and the outcome is rarely certain. Therefore, when possible, you should enter into a written stipulation to be submitted for the court’s approval. The stipulation then becomes part of the court’s temporary order. Frequently, motions request temporary orders relating to support, maintenance of health and life insurance, and temporary custody of minor children. Other requests relate to matters such as motions to allow “amendment of pleadings,” “more time to answer a complaint,” and “continuances.” Requests for restraining orders and requests to vacate the marital home are also made by motion.
Motion for Attachment. See Attachment
Motion for Counsel Fees Pendente Lite. See Counsel Fees Pendente Lite, Motion for
Motion to Vacate the Marital Home. See Vacate the Marital Home, Motion to.

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N

Necessaries. The common law doctrine that if a person who owes another person the duty of support and fails to support such person, he becomes liable to third parties who provide necessaries such as the grocer and utility company to person owed a duty of support.The dollar amounts are limited and vary from state to state. The better practice is to get a temporary order of support.
Negotiated Settlement; Negotiated Agreement. The parties, usually with counsel, develop a separation agreement. These agreements are not mediated or arbitrated. In other words, the parties, without any neutral third-party, settle their controversy.
No-Fault Divorce. See Fault and No-Fault Divorce
Notice; Legal Notice. The procedure for informing a party that a legal action or motion is pending before a court. Courts normally refuse to hear complaints or motions unless proper notice is given, but exceptions are often made for ex parte motions which do not require notice to the opposing party. The rules of civil procedure govern both the procedure for serving process and related time requirements. Initial complaints must be served by sheriff or constable (in-hand service), while motions can usually be served either in-hand or via US mail. Parties usually have 20 days to respond to the initial complaint and 10 days to prepare for motions unless a copy of the motion is served in-hand (rather than by US mail), then only 3 to 4 days notice are required. State laws vary, so check with counsel.
Nullity of Marriage. See Annulment
Nuptial. Of, or pertaining to, marriage

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O

Order; Court Order; Order of the Court. A written instruction from the court carrying the weight of law, i.e., the knowing violation of which constitutes contempt of court. Orders must be in writing. Many parties quote the courtroom statements of the judge. What the judge says “orally” may be interesting or even insightful, but it does not carry the force of law unless in writing. Before acting or failing to act in response to the judge’s oral comments, you must consult counsel.

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P

Palimony. Payments similar to alimony made to a former co-habitator.
Parens patrieae. The right of the state to take charge of the care and custody of minor children or other legal incompetents when their health or safety so requires.
Parental Kidnapping. The act of one parent illegally taking a child in violation of court order. The federal Parental Kidnapping Prevention Act requires states to cooperate with each other in returning children kidnapped by a parent. The United States, along with approximately 35 other countries, are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. This treaty is similar to the federal law except it is limited to signatory countries.
Pendente Lite. Latin for “during the litigation.” See Counsel Fees Pendente Lite, Motion for
Perjury. Perjury is knowingly lying under oath. If a person believes he is telling the truth, but is factually incorrect, he’s neither a liar nor perjurer. If he knowingly and intentionally makes factually incorrect statements under oath, he is both a liar and perjurer. If the statement is not made under oath, he is merely a liar. Clients often comment that opposing counsel is a “liar” or “perjurer.” If opposing counsel makes a factually incorrect statement, it doesn’t necessarily mean he is lying. Who knows what he believes, or what his client told him? Try to stay calm when this happens. See Courtroom Etiquette. Perjury may run rampant in divorce trials. Criminal prosecution for perjury in a civil cases is virtually non-existent. No one likes being lied to, especially judges. The “jerk” factor often decides cases. Which party is the bigger jerk? Judges are human. They often like one side more than the other. Point out your spouse’s perjury at trial, and he’ll assume “jerk” status.
Personal Jurisdiction. See Jurisdiction
Petition. See Complaint and Joint Petition
Physical Custody. See Custody--Physical
Pleadings. Includes the complaint (or petition), answer, and counterclaim. Attached to pleadings is a “certificate of service” or “proof of service” that certifies how, where, and when such pleading was served on the opposing party and whether the service was by constable, deputy sheriff, by mail, or by “legal notice” published in a newspaper.
Postnuptial Agreement. Same as prenuptial agreement, but entered during the term of the marriage, often revising a prenuptial agreement. If a divorce is imminent, i.e., the parties enter into a Postnuptial agreement in anticipation of divorce, then the contract is called a Separation Agreement or Settlement Agreement. See Agreement; Separation Agreement; Property Settlement Agreement; Marital Agreement.
Prayer; Prayer for Relief. The request made to the court, usually at the end of a pleading, asking for the relief sought, such as granting a divorce or ordering financial support. For instance, you might say “the plaintiff respectfully requests this Honorable Court to....”
Prejudice; With and Without Prejudice. The concept that what happens in court or by stipulation of the parties will affect future proceedings. Generally, pretrial orders are said to be without prejudice, which means that the parties have a right to a trial on all matters, including those decided by temporary orders. In contrast, with prejudice means that even at trial the earlier order determines the outcome.
Preliminary Hearing. Any court proceeding that occurs prior to trial.
Premarital Assets. Assets acquired before marriage. These assets usually are part of the marital estate in equitable distribution states and are excluded from, and constitute separate property in, community property states.
Prenuptial Agreement. A written, premarital contract dealing with death and divorce which sets forth the rights and responsibilities of the parties upon occurrence of these events.
Such agreements must be “fair and reasonable” at the time entered, and “fair and reasonable” at the time of enforcement. The longer a marriage, the less enforceable they become. The parties financial statements should be attached since full disclosure is required.
Pretrial Conference. A meeting of all parties and counsel with the trial judge, sometimes held in the judge’s chambers. Most states require these pretrial conferences. Counsel prepare a “pretrial memoranda” for the court, and the judge asks pointed questions. Most cases settle during this conference since the parties hear, for the first time, how a real-life judge would decide the case. A judge’s general impressions and settlement recommendations carry great weight, especially when the pretrial judge will also try the case. Parties are often surprised by how close they are to settling. Often the only thing keeping them apart is their attorneys’ failure to communicate with their clients and with each other. Some lawyers never really understand their own cases until a judge, with 5-10 minutes of preparation, explains it to them. They are highly focused on a few trees when the forest is on fire. Lawyers’ lack of communication and their zealous but unrealistic advocacy waste tens of millions of dollars annually.
Pretrial Discovery. See Discovery; Pretrial Discovery
Pretrial Memorandum. See Trial, Pretrial Memorandum
Pretrial Motion. See Motion
Pretrial Order. See Temporary Order; Temporary Restraining Order (TRO)
Primary Physical Custody. See Custody--Physical
Privilege. Refers to evidence based on private communications made within legally recognized “confidential relationships,” such as marriage, attorney-client, patient-psychiatrist, and priest-penitent. It also includes the privilege against “self incrimination” which can be asserted by a party accused of adultery where adultery is considered a crime. Under the rules of evidence, matters are excluded, no matter how relevant to the case, if obtained through these confidential relationships. The rules are technical and vary state to state. Consult your lawyer.
Probate; Probate Court. Probate is the legal process of administering decedents’ estates. In many states, family court is part of, or under the jurisdiction of, the probate court.
Production of Documents. See Discovery; Pretrial Discovery
Professional Responsibility (Code of). See Ethics, Legal Ethics and Cannons of (Legal) Ethics
Pro Se; Pro Se Appearance. When a party handles her own case, i.e., represents herself, she is said to appear “pro se.”
Parties are entitled to appear pro se, but counsel is recommended, especially if you have significant assets or serious child-related issues. Remember, even a lawyer who represents himself has a fool for a client.
Process. (noun). See Service; Service of Process
Procedure. See Rules of Procedure; Rules of Civil Procedure; Rules of Domestic Relations Procedure
Property Agreement. See Agreement
Proposed Findings; Proposed Orders. A document prepared by you or your lawyer and submitted to the court setting forth your best case scenario, i.e., how you want the judge to find the facts and make “conclusions of law” to decide the case.
Protective Order. See Restraining Order and Discovery Problems.

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Q

Quash. See Discovery Problems
QDRO (Qualified Domestic Relations Order--pronounced “kwad-row”). A court order directed to a “plan administrator” or “custodian” allocating retirement benefits between spouses.
QDROs often are used when one party, usually the husband, has a large pension or 401K and when liquid assets are insufficient to “even up,” i.e., pay cash to the party without or with smaller pension benefits. While judicial policy is to avoid long-term entanglements, sometimes there is no choice but to approve a QDRO.

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R

Recrimination. If the defendant is accused of adultery, “recrimination” is the counterclaim when the plaintiff is accused of adultery, too.
Recusal. The disqualification of a judge because of judicial prejudice or bias. If you believe that a judge cannot give your case a fair hearing, counsel can file a motion asking the judge to “recuse” himself. Unless the judge has a personal or business relationship with your spouse, this motion will probably fail, and can even backfire. Judges do not want to be told that they cannot act fairly.
Rehabilitative Alimony. Short-term spousal support designed to help the recipient “get started” with her new life. See Alimony.
Removal (of a minor child). The legal proceeding, usually brought by complaint or petition, by the custodial parent to remove (move) the minor child(ren) from the state. The recent trend is to allow the custodial parent more flexibility in moving out of state when there are “real advantages” (known as the “real advantage” test) to the custodial parent. The theory is what’s good for the parent (usually the mother) is good for the child, i.e., in the child’s best interest. Fathers’ rights groups have lobbied against this trend. Not all states use the “real advantage” test. We have come full circle from Victorian times when children were the personal property of their fathers. Now children are the personal property of their mothers. Many courts are unlikely to allow removal if the child has a close relationship with the non-custodial parent. Consult your attorney.
Request for Admissions. See Discovery; Pretrial Discovery
Request for Production of Documents. See Discovery; Pretrial Discovery
Restraining Order. A temporary court order prohibiting a party from certain activities. Issued in response to a motion, restraining orders often are issued to protect marital assets and to protect against domestic violence. In many states, violating a “domestic restraining order” is a criminal offense.
Retainer Agreement. See Fee Agreement
Rules; Rules of Civil Procedure; Rule of Domestic Relations Procedure. The statutory rules that govern court procedure. Courts must obey these rules. In contrast to substantive matters covered by divorce statutes, court rules are limited to procedure. Such matters as “notice” requirements, service of process, time requirements for answers and counterclaims, and discovery are established by rules. Courts have some discretion to ignore some rules if their enforcement would cause injustice. See Equity; Court’s of Equity.
Rules of Evidence. The statutory rules governing testimony, documents, and demonstrative materials. In divorce, the two most encountered rules relate to hearsay (“he said, she said),” and the marital privilege (“my husband told me...”). Clients are often frustrated when important evidence is barred from trial. Lawyers spend considerable time figuring out “how to get it in.” Try not to get too angry at the system, there is a valid reason for each rule.

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S

Sanctions. Under the Rules of Procedure, courts may penalize or sanction a party or counsel for improper behavior, such as making frivolous claims. Usually such awards are paid to the opposing party, but don’t hold your breath. Courts are reluctant to punish obstructionist lawyering or uncooperative parties. The divorce bar has created a lucrative cottage industry out of obstructing justice.
Secretion of Assets. The hiding of assets.
Self Incrimination; the right against. The right of the accused not to admit criminal wrongdoing. Most wrongful behavior is not criminal in divorce, so the right against self incrimination cannot be asserted. Certain acts, however, such as adultery, are still considered crimes in most states. Domestic violence and tax cheating are also crimes. The right may be asserted in these limited instances, but unlike criminal proceedings, the judge may draw a negative inference from a party asserting the right against self incrimination. In other words, the judge can assume your guilt from your assertion of the right. In criminal cases, drawing such inferences is strictly forbidden.
Separate Maintenance. See Legal Separation
Separate Property. Property is not considered part of the marital estate. Usually occurring in community property states, it includes property brought into the marriage and also may include inheritance or gifts received during the marriage.
Separate Support. See Legal Separation
Separation. See Legal Separation
Separation Agreement. See Agreement
Service; Service of Process. The legal process of informing, i.e., “giving notice,” that a complaint or motion is pending.
The process described is a noun meaning certain pleadings served or to be served. Process is served personally (“personal service”) either in-hand or accepted by an adult at the recipient’s residence or place of business. If the defendant cannot be located, service is by “publication” in the local newspaper where he last lived. Check with your attorney as rules vary from state to state.
Settlement; Settlement Agreement. See Agreement; Separation Agreement; Property Settlement Agreement; Marital Agreement
Shared Custody. See Custody
Sole Custody. See Custody
Special Master. A court-appointed individual, usually an attorney, who assists the court in moving a case forward.
Problems relating to pretrial discovery often are handled by a special master who schedules and coordinates discovery. Such procedure is necessary where one or both parties fail to comply with discovery requests, or when the parties can’t agree on appraisers a special master can make the selection. Note that the special master is not a judge -- his opinions carry weight, but not the final word.
Spousal Lien on Marital Property. See Attachment
Spousal Support. See Alimony
Stay; Stay of Proceedings. The stopping of a judicial proceeding. A “stay of execution” stops the enforcement of a court order. Generally, stays are granted by appeals courts, but appeals are rare in divorce cases.
Stipulation; Stipulated Agreement. A written agreement intended to be entered as a court order upon motion of the parties. Courts like and usually approve reasonable stipulations. They save judicial time. Parties can stipulate to almost anything related to the case. In fact, a separation agreement is nothing more than a comprehensive stipulation. If the parties agree on some matters, but disagree on others, they can stipulate to those issues and have the court decide outstanding issues.
Strike; Motion to Strike. Upon motion of a party, a court may remove certain pleadings and evidence from the docket upon finding such material totally irrelevant, scandalous, or without proper notice.
Subpoena; Subpoena Duces Tecum. A court order (or order of a notary public in some states) to attend a legal proceeding such as a trial or deposition. If documents also are requested, the subpoena is called a subpoena duces tecum, Latin for “bring with you.” See also Discovery; Pretrial Discovery.
Success Fee. Legal fees added to hourly billings if, in the lawyer’s opinion, he deserves a bonus based on his performance. Obviously, outside the practice of law, you are unlikely to find an employee or consultant unilaterally deciding his own compensation. Even chairmen of large corporations don’t set their own compensation levels. Think of your local supermarket cashier: “Well, today the produce is exceptionally fresh and you didn’t have to wait, so that’s an extra $10.00.” If your lawyer wants a success fee, see if he’ll give you a “failure discount.” Ask whether he’ll agree to reduce his fee if in your sole opinion his performance was unsatisfactory. While some highly-regarded lawyers charge success fees, we believe it raises ethical questions, especially since counsel knows you, your psyche, and your finances intimately! Your state’s Cannons of Ethics may address this issue.
Summary Judgment. A procedural rule that allows judges to enter judgments without trial, generally used when only questions of law, and not fact, are at issue.
Summons. The court’s official notice to the defendant that he must respond to the attached complaint or petition. The complaint must be served with the summons for the defendant to know the particulars of the claim against him. A sheriff or other party authorized to serve process completes a “proof of service” or “return of service” that is filed with the court.
Supervision; Supervised Visitation. See Visitation
Surviving Agreement. See Agreement and Modification; Complaint for

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T

Temporary Order, Temporary Restraining Order (TRO). A pretrial order, i.e., interlocutory order, compelling a party to do something, or prohibiting him from certain activities. Upon motion, courts may issue temporary orders at any time from the initial filing of a case to time of trial. Temporary restraining orders (TROs) are issued to preserve marital assets, such as restricting borrowing and spending. They also are used to restrain parties, usually the husband, from returning to the marital home (see Vacate; Motion to Vacate the Marital Home) or harassing the spouse.
Temporary Support. An interlocutory order of support entered before trial, i.e., an order issued while a case is pending. See Temporary Order.
Tenancy by the Entirety. The manner in which jointly owned real estate is usually held by married couples. The surviving spouse, if the parties were married at time of death, becomes the sole owner automatically.
Testimony. Any statement made under oath.
Tort; Marital Tort; Domestic Tort. A tort is any wrongful act which creates legal liability against the defendant or “tortfeaser.” Some states allow spouses to bring “tort” actions in addition to divorce actions. Tort claims include assault and battery, fraud, and intentional interference with a person’s job or business. Domestic tort claims are rare, as most divorce cases cover all matters related to the marriage.
Trial; Hearing on the Merits; Evidentiary Hearing. A formal proceeding before a judge who hears testimony under the rules of evidence and makes a final decision relating to the matters presented. All such decisions are with prejudice, since they are final adjudications of the matters presented. In contrast, motions are less formal without adherence to the rules of evidence. They do not result in final adjudication, but only temporary orders. Therefore, they are often without prejudice.
Trial Memoranda; Pretrial Memoranda. A “sales” document filed with the court, setting forth each party’s theory of the case, what they want, and why they should get it.
Trustee Process. A court order to a third party, such as a banker, freezing an account or property. In effect, the third party becomes your trustee. He is responsible to you and the court for the safekeeping of certain property, such as money or the contents of a safe deposit box. A “writ of trustee process” is issued by the court in response to a motion and an affidavit of “irreparable harm” filed in support of the motion.

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V

Vacate the Marital Home, Motion to. A request to the court made by motion asking that one party, usually the husband, be forced to vacate the marital home. Unless you are under the threat of violence, this is a radical request that sets the stage for a contentious divorce. While your spouse may well deserve shabby treatment, you deserve to get what’s yours with the least effort. Don’t complicate things unnecessarily.
Venue; Change of Venue. The location of the court, in contrast to jurisdiction, which determines whether a court has legal authority to hear a case. Venue is where a court, with proper jurisdiction, will hear the case. When a case is transferred to a new location within the same jurisdiction (county or state), the transfer is called a change of venue.
Usually, the county court in the county where the parties last lived together is the proper venue.
Visitation, Grandparent. Grandparents have visitation rights in all 50 states. These rights generally do not cover non-biological descendants, i.e., adopted grandchildren or biological grandchildren given up for adoption.
Visitation; Supervised Visitation. Pursuant to stipulation, agreement, or court order, visits of unemancipated children with their non-custodial parent. Visits are supervised by a responsible adult when the non-custodial parent is accused of child abuse or neglect. Take out your calendar and think it through. The schedule should be flexible, but consistent enough so you can make plans.

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W

Wage Assignment; Wage Attachment. See Garnishment
With and Without Prejudice. See Prejudice; With and Without Prejudice
White Marriage. A marriage without sex.
Writ of Attachment. See Attachment; Motion for Attachment
Writ Ne Exeat (Arrest). An arrest warrant granted in emergencies.This is an extraordinary remedy used in extraordinary circumstances. For example, it is used to prevent the removal of assets or minor child. When such removal is imminent, the court orders the sheriff to arrest and bring the defendant to court.

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