Our Courts-How They Work

Our Courts-How They Work | Glossary of Legal Terms A-H | Glossary of Legal Terms I-M | Glossary of Legal Terms N-Z | Bankruptcy Terminology A-L | Bankruptcy Terminology M-Z | Divorce Law A-F | Divorce Law G-Z | Estate Planning & Probate | Real Estate A-G | Real Estate H-O | Real Estate P-Z |

OUR COURT SYSTEM - HOW IT WORKS

The legal system in the U.S. is based on the philosophy that the true facts of a given situation—and hence justice—will emerge if the parties to a court action act as adversaries rather than as cooperative participants. The theory is that if each side vigorously advances its own version of the facts, an impartial third person or group of persons (judge or jury) will sift out the truth. Critics point out that this system depends on equality of representation (assuming the parties are proceeding through advocates). If one advocate is better than the other, or has more money to prepare the case, the truth may not emerge.

The adversary system’s use has been especially criticized in family law cases on the ground that it intensifies divisions within a family rather than ameliorates them. Because cooperation between former spouses is necessary if children are involved, the adversary system seems particularly inappropriate in these instances. In response, a number of innovative procedures are being used to help spouses and domestic partners resolve their disputes without recourse to the traditional adversarial approach.

For instance, many states require or encourage parents with children who can’t agree on custody and visitation to meet with a court mediator. In this meeting, the mediator helps the parties to explore their differences and craft their own solutions. And in many communities, private mediation services are increasingly available for both court referrals and spouses to use before either files for a divorce. Finally, many family law attorneys are themselves becoming mediators and helping divorce-bound parties to resolve their differences without the necessity of each person having an attorney.

SOME TERMINOLOGY

CASE:  A case describes a dispute taken to court. An appellate court decision published in a book of such decisions is also called a case and may be used as guidance or precedent by other courts. A person doing legal research will commonly say that he has to look up a case to see if its ruling on a point should be followed by other courts. The core legal issue in a case is sometimes referred to as the gravaman of the case.

LEADING CASE: The most important published case in a particular area of law is called the leading case. Such important cases are used as guidance by lawyers and judges who face similar issues later. For example, in the area of abortion, the leading case is Roe v. Wade.

LITIGATION:  Litigation is the process of bringing and pursuing a lawsuit. Litigation often proceeds much like trench warfare; initial court papers define the parties’ legal positions as trenches define battlefield positions. After the initial activity, lawyers sit back for several months or years and lob legal artillery at each other until they grow tired of the warfare and begin settlement negotiations. If settlement is unsuccessful (90% of all lawsuits are settled without trial), the case goes to trial, and may be followed by a lengthy appeal.

Many states have enacted reforms directed at shortening the time a case takes to get to trial and minimizing the expense traditionally associated with litigation. Among these reforms are:

FAST TRACK: Rules that prohibit delays and require each phase of the case to be completed within a particular period of time * limits on how much information can be obtained from the opposing party * requirements that certain types of cases be arbitrated (a simpler procedure) rather than pushed through the court system * requirements that attorneys

inform their clients of alternative dispute resolution procedures such as mediation, and * court-sponsored techniques such as mini-trials and early neutral evaluation that are designed to get the parties to settle by giving them a realistic assessment of what is likely to happen if the case goes to trial.

ACTION: Action is another word for lawsuit, case, legal matter or litigation. Cause of action refers to a set of facts that make up the grounds for filing a lawsuit.

ISSUE: Issue refers to the central point of dispute in a case.

HEARING: A hearing is a legal proceeding (other than a trial) held before a judge or court commissioner. At a trial, disputed questions of fact and law are resolved and the case is concluded (although the parties may appeal). At a hearing, on the other hand, preliminary issues, procedural issues (including granting an uncontested or default divorce) and post-trial modifications and enforcements are heard.

Example 1: Paul has sued Taya for divorce. Their trial is to be held in nine months. Taya needs alimony now, however, so she files a request for temporary alimony. The court schedules a hearing at which Paul and Taya can appear before a judge and orally present their separate sides. After listening to Paul and Taya, the judge will decide if Taya is entitled to the alimony, and if so, how much.

Example 2: Paul receives sporadic royalty payments for a book he wrote seven years ago. He claims that the income is speculative and hopes to keep it from being considered in the upcoming divorce trial where the amount of permanent alimony will be determined. A week before the trial, Paul requests a hearing to determine whether the law requires that the judge consider his royalty income in setting Taya’s alimony.

SIDE BAR—ADMINISTRATIVE HEARING

Administrative law is the body of law governing administrative agencies-

that is, those agencies created by Congress or state legislatures, such as the Social Security Administration, state Unemployment Insurance Boards, state Welfare Commissions and the Occupational Safety and Health Administration. The authority these agencies possess is delegated to them by the bodies which created them; the Social Security Administration’s power comes from Congress.

Administrative agencies administer law through the creation and enforcement of regulations; most of these regulations pertain to providing some type of benefit to applicants. Frequently, an applicant objects to an agency’s decision to deny, limit or terminate the benefits provided and seeks to have the decision reviewed. This review is called an administrative hearing and is held before an administrative law judge (A.L.J.).

Administrative hearings are informal, yet very important. Usually, the A.L.J. meets with representatives from the agency and the applicant seeking benefits. The applicant may choose to be or not be represented by an attorney and in fact, many administrative agencies permit paralegals, law students or law clerks to appear on behalf of applicants. Each side presents its evidence and elicits testimony from its witnesses. The hearing is often tape recorded, as opposed to taken down by a court reporter. The A.L.J. renders a decision called an administrative order, which may be reviewed by either a higher level

within the agency or by a court.

TRIAL: A trial may be before a judge only or before a jury. Virtually all family law trials are held without juries.

BENCH TRIAL: A bench trial is another term for a trial before a judge only. In general, the parties begin with the presentation of evidence, although in some cases they make opening statements. After the plaintiff finishes presenting his evidence, the defendant presents her case. After the defendant concludes her presentation, the plaintiff may rebut the defendant’s case. Rarely are closing arguments made. The judge may rule immediately, but more often takes anywhere from a few hours to a few weeks to consider the evidence and reach a decision.

SUBMISSION: When a judge does not immediately announce a decision, the judge is said to take the case under submission.

JURY TRIAL: In a jury trial, the jury is selected by the parties through a process called voir dire, where the judge or parties ask jurors questions in order to determine their biases and opinions. (Each side gets to reject a certain number of potential jurors.) After the jury is chosen and sworn in, the parties give opening arguments, present their evidence and give closing arguments. The jury then deliberates; when it reaches a decision, it returns to the courtroom and announces the verdict.

The roll of the jury is to decide issues of fact. Parties are entitled to a jury trial by the federal constitution in those types of cases, such as breach of contract, which existed in 1789, the effective date of the constitution. Kinds of cases that have come into existence since then, however, such as divorce (which in 1789 still fell under the religious courts) and actions in juvenile courts, are not guaranteed jury trials. States are free to make jury trials available for such actions, but few have. In fact, only Texas and Georgia permit jury trials for divorces.

WHERE THE LAW COMES FROM

There are two major ways in which legal principles are developed in the United States. One is through appellate court decisions in individual cases, called case law. The other is through the passage of laws by voters and legislative bodies, called statutes.

CASE LAW: Legal principles that are developed by appellate courts when deciding appeals are collectively termed the case law or common law. Since the 12th century, the common law has been England’s primary system of law. When the United States became independent, states adopted the English common law as their law. Since that time, decisions by U.S. courts have developed a body of U.S. case law that has superseded English common law in most areas.

SIDE BAR—PRECEDENT

Precedent is a legal principle, created by a court decision, which provides an example or authority for judges deciding similar issues later. Generally, decisions of higher courts (within a particular system of courts) are mandatory precedent on lower courts within that system— that is, the principle announced by a higher court must be followed in later cases. For example, the California Supreme Court decision that unmarried people who live together may enter into cohabitation agreements (Marvin v. Marvin), is binding on all appellate courts and trial courts in California (which are lower courts in relation to the

California Supreme Court). Similarly, decisions of the U.S. Supreme Court (the highest court in the country) are generally binding on all  other courts in the U.S.

Decisions of lower courts are not binding on higher courts, although from time to time a higher court will adopt the reasoning and conclusion of a lower court. Decisions by courts of the same level (usually appellate courts) are considered persuasive authority. That is, they should always be carefully considered by the later court but need not be followed.

As a practical matter, courts can usually find precedent for any direction they want to go in deciding a particular case. Accordingly, precedent is used as often to justify a particular outcome in a case as it is to guide the decision.

STATUTE: Under the U.S. and state constitutions, statutes are considered the primary source of law in the U.S.—that is, legislatures make the law (statutes) and courts interpret the law (cases).

Most state statutes are organized by subject matter and published in books referred to as codes. Typically, a state has a family or civil code (where the divorce laws are usually contained), a criminal code (where incest, bigamy and domestic violence laws are often found), welfare code (which contains laws related to public benefits), probate code (where laws about wills, trusts and probate proceedings are collected) and many other codes dealing with a wide variety of topics. Federal statutes are organized into subject matter titles within the United States Code (for example, Title 18 for crimes and Title 11 for

bankruptcy).

SIDE BAR—LEGISLATIVE INTENT

Legislative intent is what a legislature as a whole had in mind when it passed a particular statute. Normally, any given statute is interpreted by looking just at the statute’s language. But when the language is ambiguous or unclear, courts try to glean the legislative intent behind words by looking at legislative interpretations (for instance, reports issued by legislative committees) which were relied upon by legislators when voting on the statute.

Statutes are often ambiguous enough to support more than one interpretation, and the material reflecting legislative intent is frequently sparse. This leaves courts free to interpret statutes according to their own predilections. Once a court interprets the legislative intent, however, other courts will usually not go through the exercise again, but rather will enforce the statute as interpreted

by the other court.

UNIFORM STATUTES: Uniform laws, such as the Uniform Child Custody Jurisdiction Act, the Uniform Pre-Marital Agreement Act, and others, are model laws proposed by a national group of judges, lawyers and law professors called the Uniform Law Commissioners. The commissioners propose the laws; states are free to enact or reject them.

Topics covered by uniform laws are often ones in which there is much interstate activity, such as marriage, divorce, paternity, custody and child support and in which consistency, predictability and uniformity are desirable. Some uniform laws have been passed by all states (for example, the Uniform Child Custody Jurisdiction Act) whereas others have only been enacted by a few (for instance, the Uniform Divorce Recognition Act). Clearly, the central goal of uniformity is well served only if a significant number of states enact a given uniform law.

ORDINANCE: An ordinance is a law enacted by a municipal body, such as a city council or county commission (sometimes called county council or county board of supervisors). Ordinances govern matters not already covered by state or federal laws such as zoning, safety and building regulations.

SIDE BAR—LAWS OF SUBSTANCE AND PROCEDURE

Laws which define legal duties and rights are called the substance of the law, or substantive law. Substantive laws include the standards for custody, the grounds for divorce and the right to have an abortion.

On the other hand, the body of laws which tells how to go to court and get judicial relief is generally called the law of civil procedure. Civil procedure is predominantly made up of statutes and rules issued by individual courts.

PARTIES: A person who sues or defends a lawsuit or any person joined in a  lawsuit, such as a pension plan administrator is called a party. A party has the right to conduct discovery and receive notice of all proceedings connected with the lawsuit.

PRO PER OR PRO SE: A party to a lawsuit who represents herself, rather than being represented by a lawyer is called a party in pro per (or pro se). Both terms mean “for yourself.” Pro per and pro se litigants often find it difficult to do their own legal work because the legal system is hostile to self-helpers. Arizona and Colorado, however, have implemented an automated court system that provides people with legal information and helps them complete court documents themselves. Also, self-help law books and paralegals who directly serve the public are increasingly available to help pro per and pro se litigants in many states.

PLAINTIFF: The person who initiates a lawsuit by filing a complaint is called the plaintiff. When the document that initiates a lawsuit is called a petition rather than a complaint, the initiating person is usually referred to as the petitioner rather than the plaintiff.

DEFENDANT: The person against whom a lawsuit is filed is usually called the defendant. In some states, or in certain types of actions, the defendant is called the respondent. The term respondent is also used to designate the person responding to an appeal.

SIDE BAR—SPECIAL CONCERNS OF PLAINTIFFS AND DEFENDANTS

In Forma Pauperis. In Forma Pauperis is a Latin term meaning “in the

character of a pauper.” It refers to a petition filed by a poor person in order to proceed in court without having to pay court costs such as filing fees.

In forma pauperis proceedings are available in every state. A person with a low income (usually eligible for or receiving public assistance) fills out in forma pauperis papers (indicating income and expenses) before filing his first court paper (complaint or answer). The papers request that the court decide whether or not the costs be paid. Although a hearing before a judge is sometimes needed, the more usual practice is for the court to grant or deny the request without a hearing.

Military personnel. A person on active military duty is a person who has enlisted in the armed services and is serving out the term of his enlistment, or is an officer in the armed services who has not transferred to the reserves, resigned, retired or been dismissed. A person on active military duty is prohibited by a federal law (Soldiers and Sailors Civil Relief Act, 50 U.S.C. Section 501 et seq.) from being subjected to any civil court action, including a divorce, unless he

consents to the power of the court to hear the case. A plaintiff who wants to sue someone on active military duty who won’t consent must wait until he leaves active duty. The reasons for this rule are: it would not be fair to proceed in court against a serviceperson who is prevented from attending because of his military duty, and * it would be too disruptive and expensive for the military to have its members coming and going long distances just because they have been sued.

CO-RESPONDENT: The “other man” or “other woman” named in the court papers for a fault divorce alleging adultery is called the co-respondent.

APPELLANT: The person who objects to the trial court decision and asks the appellate court to review the decision by filing an appeal is called an appellant (also called a petitioner in some states).

APPELLEE: The party against whom an appeal is filed is called the appellee or the respondent. Sometimes the appellee will also appeal certain aspects of the lower court’s decision; he then becomes a cross-appellant as well as an appellee. In this situation, the appellant (the one who filed the appeal) becomes a cross-appellee or cross-respondent.

TYPES OF COURTS

TRIAL COURT: The trial court is the court in which a lawsuit is filed, and where all litigation up to and including the trial is held.

APPELLATE COURT: An appellate court is one which decides appeals of trial court decisions or lower appellate court decisions. A state’s highest court—usually called the supreme court—is an appellate court. So is the U.S. Supreme Court.

FAMILY COURT: Family courts are special trial courts that hear only family law cases.

FILINGS/PAPERS: All papers filed with a court regarding a lawsuit are called court papers. Court papers typically consist of pleadings (complaint or petition and answer), motions (written requests to the court to take some specific action) and court orders (written orders resulting from a trial or hearing).

The term responsive pleading is used to describe any court paper filed by a defendant in direct response to the complaint or petition filed by the plaintiff. An answer is the typical responsive pleading. Others include various motions, such as a motion to quash service of process or a motion to dismiss the complaint, which is intended to get the complaint or petition dismissed at the outset of the case.

A number of states have developed pre-printed court forms for use in court proceedings involving such matters as divorces, guardianships and temporary restraining orders. These forms are especially helpful to people handling their own cases without lawyers; checking boxes and filling in blanks is usually much easier than figuring out what needs to go into a document that must be typed from scratch. On the other hand, some forms are so confusing that they intimidate all but the most knowledgeable lawyers or paralegals.

SUMMONS: A paper issued by a court informing a person that a complaint has been filed against her (that is, that she has been sued) is called a summons. The summons tells her that she is being sued, by whom, for what, and that she must file a response with the court within a certain time or will lose.

COMPLAINT: The complaint is the first court paper filed in a lawsuit. It briefly states the plaintiff’s view of the crux of the legal dispute and asks the court to resolve the dispute. In some types of cases and in certain states, a complaint is called a petition or a libel. Items that typically appear in a complaint include:

Caption. The caption is the heading which appears on all court papers. The caption contains the names of the parties to the lawsuit (for example, Susan Roe, Plaintiff, v. Robert Roe, Defendant), the name of the court (for example, Federal District Court for the Eastern District of Arizona), the case number which has been assigned by the court clerk, and the title of the court paper (for example, Complaint for Annulment).

Allegations. An allegation is a statement made in court papers that sets forth a party’s belief as to what the facts are in a given case. Referring to statements made in court papers as allegations serves as a reminder that they may or may not be true. Thus, when a party has alleged something, she has made charges which remain to be proven.

Prayer. The prayer is the part of a complaint which requests the court to grant some specific judicial relief (for example, a divorce, possession of the family home, child support or custody).

ANSWER: An answer is a formal response to allegations made in a complaint (or petition). Normally, the answer either admits or denies the allegations, although some states allow an answer to state a lack of knowledge as to whether a particular allegation is true or false. If the defendant fails to file an answer, the plaintiff usually wins by default. In a divorce, failure to file an answer may result in a default divorce.

Example: Martin is sued for paternity by his former lover, Rhoda. Martin will be served with a complaint (or petition) containing the allegation that Rhoda believes he is the father of her child. He must answer within a certain period of time (usually about 30 days) or lose by default. In his answer, he must either admit or deny each of the complaint’s allegations. In some states, Martin may respond that he doesn’t know whether or not an allegation is true.

BRIEF: When a party (either through her lawyer or in pro per) submits a written legal argument to a court—usually to support a motion or a position asserted at a trial—the document is often called a brief. It typically consists of a statement of the facts relevant to the case and arguments supported by references to legal authority (statutes, regulations or earlier court decisions). Many briefs are quite lengthy; the label “brief” is an infamous misnomer celebrated by the writer Franz Kafka who described a lawyer as “a person who writes a 10,000 word document and calls it a brief.”

Points and authorities. A brief usually contains a memorandum of points and authorities. Points and authorities explain why the law authorizes the judge to take the requested action. The term points and authorities comes from the fact that the legal discussion makes certain points followed by citations to legal authority (usually a court decision or statute) supporting each point.

Citations. The proper reference (as established by the legal profession) to a case, constitution, statute, legal encyclopedia or legal treatise is called a citation. A citation contains the name of the case or other authority, the name of the book in which it is found, the volume in which it appears, its page or section number and the year decided or enacted. Citations allow any reader to find the source and read it.

Example: The proper citation for the case allowing women to have an abortion is Roe v. Wade, 410 U.S. 133 (1973). The name of the case includes the name of the plaintiff (Roe) followed by a v. (meaning versus) followed by the defendant’s name (Wade). 410 is the volume number where the case is found in the series called United States Reports (abbreviated by U.S.) at page 133. The case was decided in 1973.

AMICUS CURIAE BRIEF: Amicus curiae is a Latin term meaning “friend of the court.” It is a legal argument filed in a lawsuit by a person or organization not a party to the case, but who has an interest in the outcome. For example, in the Supreme Court abortion case, Webster v. Reproductive Services, amicus curiae briefs were filed by hundreds of pro-choice and anti- abortion organizations. The court may give the arguments in the amicus curiae brief as much or as little weight as it chooses.

AFFIDAVIT: An affidavit is a written statement made by a person who signs the statement in front of a notary public and swears to its truth. Affidavits are used in place of live testimony in many circumstances (for example, when a motion is filed, a supporting affidavit may be filed with it).

DECLARATION: A declaration is a written statement submitted to a court in which the writer swears “under penalty of perjury” that the contents are true. That is, the writer acknowledges that if he is lying, he may be prosecuted for perjury. Declarations are normally used in place of live testimony when the court is asked to order temporary provisions for alimony, child support, custody, visitation and property division.

A typical declaration sets forth the factual assertions of the person signing it (called the declarant) and ends with a statement worded like this one: “I declare under penalty of perjury that the foregoing is true and correct, and would be my testimony if I were in a court of law.” The date and place of signing are usually included.

Some states allow declarations to be used in the place of affidavits, thus avoiding a trip to the notary public.

ASSERTION: An assertion is a statement that a thing is true in the mind of the person making the statement, whether or not it has been proven to be true.

FINANCIAL STATEMENT: A financial statement (sometimes called an income and expense declaration) is a court paper which requires a party to specify her monthly income and expenses. The court often requires each divorcing spouse to fill out a financial statement so that the court has a complete picture of the parties’ financial situations before making a decision on alimony, child support, payment of attorneys’ fees or other financial matters.

HABEAS CORPUS PETITION: Habeas corpus is Latin for “you should have the body.” In legal terms, it is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

SIDE BAR—TERMS SOMETIMES FOUND IN COURT PAPERS

Above captioned cause. The above captioned cause is a phrase used in court papers meaning the particular case. It allows the writer to refer to the case without restating its name. It is not necessary, however, to use this phrase.

Example: Assume Fred Johnson is representing himself in his divorce and files a request for a modification of child support. In court papers, he may refer to his own case of Johnson v. Johnson as “the above captioned cause.”

Incorporate by reference. The method of including the contents of a document—such as a letter—in court papers or a contract without actually retyping it is called incorporating by reference. This is done by attaching the document to the back of the court papers or contract and referring to it with convoluted language such as, “the letter is attached to this document as Exhibit A and incorporated by reference as if fully set out within this document.”

COURT PERSONEL

CLERK: Within our judicial system, there are many types of clerks. Court clerks (frequently called county clerks) keep track of documents filed with courts; these clerks may also be called civil or criminal clerks, depending on the court in which they work. Courtroom clerks are assigned to particular judges to handle the paper flow in the courtroom; law clerks (usually law students or lawyers) assist judges (and sometimes attorneys) in legal research and writing. Calendar clerks handle the scheduling of trials and hearings.

BAILIFF: A bailiff is a law enforcement officer, usually a sheriff, marshal or constable, assigned to a courtroom to keep peace and assist the judge, courtroom clerks, witnesses and jury.

JUDGE PRO TEM: A judge pro tem is not a regular judge, but someone (usually a lawyer) who is brought in to serve temporarily as a judge with the consent of the parties. Many courts use pro tem judges because there are too many cases for the regular judges to handle. Although every party has the right to have his case heard by a real judge, judges pro tem are often practitioners in the field in which they are asked to hear cases and have as much, if not more, knowledge than a real judge. Pro tem judges are used often in family law cases, especially in default divorces.

MASTER: A master (sometimes called a special master) is a court-appointed official who  helps the court carry out a variety of special tasks in a specified case. For example, the master may take testimony or permit discovery of evidence. She then prepares a report for the judge. In many family law proceedings, some routine matters, such as uncontested divorces, are conducted by a master.

COURT COMMISSIONER: A court commissioner is a person appointed by a judge to assist her in finding facts, hearing testimony from witnesses and resolving issues. Court commissioners are frequently lawyers or retired judges. In many states, court commissioners commonly hear testimony concerning the validity of wills, preside over default divorces and other default hearings, decide alimony and child support modifications, and decide discovery motions.

COURT REPORTER: A court reporter is a person trained to take down a verbatim account of all proceedings in the courtroom (but usually not in the judge’s chambers unless a party requests it). Most court reporters today use special machines that enable them to get down every word. Later, they prepare typed transcripts for use by the parties and the judge on appeal. Court reporters also record and transcribe depositions.

Until recently, court reporters had to manually type out the transcript from their shorthand notes. Now, however, many reporters have machines that read the recording machine tape and create a text file that can be printed out on a standard computer printer.

NOTARY PUBLIC: A notary public is a public official who, depending on the state, has the power to acknowledge signatures, administer oaths and affirmations, take depositions and issue subpoenas in lawsuits. Notaries public are most commonly used to acknowledge signatures, especially on court papers such as affidavits.

Although notaries public are public officials, most are people who work in private industry and take a state-administered test to become notaries public. Often, one or more employees of large institutions which process much paperwork (such as banks, insurance companies and real estate brokers) and large law offices are notaries public. Also, many people who work at courthouses are notaries public.

TERMINOLOGY

CASE NUMBER: The number given by the court clerk to a lawsuit when it is filed is called the case number. Each case in a county has a unique number so that it may be distinguished from all other cases in that county.

CASE RECORD: All papers filed with the court during a lawsuit and the transcripts of all hearings and trials (made by a court reporter) become part of the official case record. If a party appeals from a trial court judgment, the appellate court normally considers only information contained in the case record. It is therefore important for a party during the trial to get all of her evidence and objections into the case record in the event she later decides to appeal.

DOCKET SHEET: A docket sheet is a document kept in a case file at the courthouse. It lists all papers filed and actions taken in a case. The judge may also note on it any action taken during a hearing or trial. Except for juvenile court and certain other types of confidential matters (such as adoptions), case files and docket sheets are public records and can be inspected by anyone.

CALENDAR: When used as a verb, the word “calendar” is slang for scheduling a trial. (For example, “The Murphy divorce case is calendared for September 3rd.”) When used as a noun, it refers to a master list kept by a court, called the civil calendar, which shows cases that are ready for or in trial. Some states do not allow cases to be placed on a court calendar until all preliminary procedures, such as discovery and motions, have been completed. Unless the plaintiff or defendant (or one of their lawyers) requests that a case be placed on this calendar, it will never be scheduled for trial. In fact, many cases are dismissed every year because attorneys fail to take this vitally important step.

Example: Estelle and Ira Green are ordered to return to court in six months for the judge to decide whether Estelle will need alimony any longer. In the courthouse case file for the Marriage of Green (the title of the case), Judge Garcia will place a sheet of paper (often a form) on which she has written “Husband to pay wife $250 per month for six months. Parties to return to court in six months for further order.”

COURT RULE: Every court has rules (often called local rules) governing the procedures specific to that court. Details such as the size and length of the court papers, time limits for filing certain documents, the cost of filing and when a case may be placed on a calendar are dictated by these rules. In most states, statewide court rules govern the amount of alimony and child support to be paid based on the incomes of the spouses and the number of children. Court rules are usually formulated by legislative and administrative judicial bodies, or by the courts themselves.

BIAS: Any mental condition that would prevent a judge or juror from being fair and impartial is called bias. It may be ground for disqualification of the judge or juror in question.

PEREMPTORY CHALLENGE: Most states allow the parties to a case to dismiss the judge assigned to the case without having to prove actual bias. Called a peremptory challenge, this right may usually only be exercised once by a party in any given case.

BENCH: The furniture on which the judge sits is called the bench. When something is done from the bench, it means it was done by a trial judge.

CHAMBERS: A judge’s office is referred to as her chambers. Settlement conferences and adoptions are usually held in her chambers. During a trial, when the judge wants to examine documents, speak with witnesses or speak with the attorneys outside the jury’s presence, the judge presides in camera, the Latin term for “in chambers,” and holds a conference either in the chambers or at the bench (where the attorneys and judge whisper so the jury can’t hear).

RECUSAL: Recusal is the process by which a judge voluntarily removes himself from hearing a particular case because of bias, conflict of interest, relation to a party, attorney or witness, or for any other reason.

CONTINUANCE: When a court postpones a hearing, trial or other scheduled appointment (such as a settlement conference), it is called a continuance. If one party is not prepared for a hearing or trial, the court may grant a continuance to allow the party to get a lawyer or otherwise prepare so as not to be at a disadvantage. While continuances are often called for on the ground of fairness, they also are commonly sought by attorneys solely for the purpose of delaying the proceeding or harassing the other side.

SERVICE OF CASE DOCUMENTS: A party to a lawsuit has the right to receive written notice that he is being sued or that a hearing will be held which might affect him in some way. Many rules have been developed to govern what notice needs to be given, and how and when it must be delivered. These are usually contained in court rules and rules of civil procedure.

Service of court papers (also referred to as service of process or service) is the delivery of court papers to a party, witness or other person who has a stake in the case. Every state has detailed laws spelling out just how the papers may be delivered, and by whom. When a person has been provided with formal notice of the filing of a lawsuit (that is, that he has been sued), of a court hearing or trial, or ordering him to attend a hearing, trial or deposition, he is said to

have been served.

In most cases, including divorces, the first papers that must be served are the summons and complaint. These documents give the defendant notice that the lawsuit has been filed and what the plaintiff is seeking (for example, a divorce). The court cannot proceed unless the plaintiff properly serves the defendant with these papers.

There are five major types of service:

Personal service—When the person served is physically handed court papers notifying her that she has been sued, she is said to have been personally served. With almost all lawsuits, the complaint and summons must be personally served unless the defendant agrees to accept service. (See below.) If the defendant does not agree to accept service and is not personally served, the court cannot take any action in the case, unless the plaintiff can show that personal service was impossible.

SIDE BAR—ACCEPTING SERVICE OF COURT PAPERS

The least expensive and most convenient way to satisfy the service requirement is for someone on behalf of the plaintiff to mail the summons and complaint to the defendant and ask her to sign, date and return a form acknowledging that she received them. This voluntary acceptance of court papers is called accepting service or acknowledgment of service, and saves the plaintiff from having to pay someone to locate and hand deliver the papers, which is otherwise required if the defendant doesn’t cooperate. In some states, the failure to accept service voluntarily makes the defendant responsible for the cost of service even if he otherwise wins the case.

Service by mail—Once a party has been properly served with the complaint and summons, most future court papers in the lawsuit may be served on the parties by first-class mail. Most states require that someone other than a party to the action do the actual mailing and file proof of the service with the court.

Service by publication—When the whereabouts of a defendant are unknown, or personal service within the state is impossible, a court may allow the defendant to be served with notice of the lawsuit by publishing the notice in a newspaper of general circulation. As a general matter, this type of service is only allowed in cases involving property and status (personal relationships affected by the law). Thus divorces and certain adoptions (status) and partition suits (property) may be allowed to proceed after service by publication. But issues such as child custody and support cannot be decided until and unless personal service occurs.

SIDE BAR—BIFURCATION

In situations where the plaintiff is unable to personally serve the defendant, the parties don’t necessarily have to stay married. The court can bifurcate the case—that is, divide it—in two. The divorce itself is determined. Only when the defendant is personally served can the court then decide the related issues of custody and visitation, child support, alimony, and property division.

Nail and mail—Nail and mail service is the posting of the notice on the person’s home and then mailing him a copy (hence nailing and mailing).

Substituted or alternate service—In some states, such as New York, substituted or alternate service is any method of service a court allows when personal service is impossible or impracticable. In other states, such as California, substituted service is leaving the court papers with a responsible person at the defendant’s home or business and then  mailing the defendant a copy.

In most divorce cases, if a divorce is all that is being sought, service often can be made by mail or publication. If, however, alimony, child support, custody, visitation or a division of property is being sought in addition to the divorce itself, most states require personal service on the defendant. In either case, if the defendant’s whereabouts are unknown, service by publication is often the only available method.

Once the defendant has been served with the summons and complaint, service of most subsequent court papers may be done by mailing them, without the need for an acknowledgment of service form. Some papers, however, such as contempt of court hearing notices and temporary restraining orders must still be formally served. The party being served, however, may voluntarily accept these papers.

After the defendant has been served, she usually files an answer or other response. She must serve this on the plaintiff, and usually can serve it by mail because the plaintiff, by initiating the lawsuit, has already appeared in the case and consented to the court’s power to hear the case.

Service of court papers on a witness (for example, service of a notice telling the witness that his deposition has been scheduled), must usually be done personally; service by mail or publication is almost never sufficient.

PROCESS AND PROCESS SERVER: Any court document carrying the court seal or clerk’s signature, that must be properly served on (that is, given to) the party or witness named in the document, is called a process document or process. A subpoena—a document requiring the appearance of a person or the production of documents at a hearing—and a summons are examples of court process. Rules as to who can serve process and how it must be done vary. Some states allow only sheriffs, marshals and constables to serve process. Other states also authorize registered process servers (often private investigators), and a few states allow service by anyone 18 or over who is not a party to the case.

PROOF OF SERVICE: A proof of service is a court paper filed by a process server as evidence that she served the witness or party to the lawsuit with the court papers she was instructed to serve.

JURISDICTION: When a court has the authority to decide a case, it is said to have jurisdiction over it. In all states, certain types of courts (often called, depending on the state, superior, circuit, county, district or family courts) are given specific and exclusive jurisdiction to handle family law cases. A family law court cannot, however, hear bankruptcies or criminal cases.

SUBJECT-MATTER JURISDICTION: The authority to decide a particular type of case is called subject-matter jurisdiction. The subject-matter jurisdiction of a court is set by the federal or state constitution, or by state statutes.

In order for a court to have subject-matter jurisdiction over a divorce action, at least one spouse must have lived in the county where the court is located for a certain period of time. Some states also require the spouse to have lived within the state for a certain length of time, usually a few months longer than the time in the county. For example, to obtain a divorce in California, a person must have lived in California for at least six months, and in the particular county in which he wants to obtain the divorce for at least three months. In Illinois, a person must have lived in the state for ninety days, in New York and New Jersey, the requirement is one year. In Texas, a person must have lived in the state for six months and in the particular county in which she wants to obtain the divorce for at least ninety days.

PERSONAL JURISDICTION: If the court is being asked to determine alimony, child support, custody, visitation or the division of property, the court must have the power to make orders concerning the individual defendant. This is called personal jurisdiction. Personal jurisdiction is also called “in personam jurisdiction.”

For a court to have personal jurisdiction over the defendant, the defendant must have been personally served (or have accepted service of the court papers) and the defendant must have at least some contacts with the state in which the court is located. No set number qualifies as the minimum; each situation must be analyzed case by case. If the defendant lives out of state, the court must look at the defendant’s contacts with the state. Going into a state regularly to conduct business is usually sufficient for the court to obtain jurisdiction; sending child support payments to a state, without actually visiting the state, however, is not.

Example: Denise and Walter spent their entire married life in Colorado. Denise moved to New Mexico, established residency and sued for divorce. If Walter has virtually no contacts with New Mexico, the New Mexico court has no personal jurisdiction over him. As a practical matter, this  means the court may award Denise a divorce, but cannot make any decisions affecting the division of property, an award of alimony or child support, or a determination of custody and visitation because these matters affect Walter’s rights as an individual. If, however, Walter and Denise spent five weeks every summer during their marriage in New Mexico, the court may rule that Walter’s contacts with New Mexico are sufficient for there to be personal jurisdiction in New Mexico.

IN REM JURISDICTION: Rem is Latin for “thing.” When a court exercises in rem jurisdiction, it exercises authority over a thing, rather than a person. For example, if a divorcing couple asks a court to supervise the sale of their family home, the court exercises in rem jurisdiction over the house. Usually, the property must be located in the same county as the court for it to have in rem jurisdiction.

A court which grants a divorce exercises in rem jurisdiction over the marriage. One spouse must live in the same county as the court (therefore the marriage is in the county) for the court to exercise in rem jurisdiction over the marriage.

VENUE: Venue is the legally proper place where a particular case should be filed or handled. Every state has rules determining the proper venue for different types of lawsuits. For example, the venue for a paternity suit might be the county where the mother or the man alleged to be the father lives; the suit couldn’t be brought in an unrelated county at the other end of the state. The state, county or district in which a lawsuit is filed or a hearing or trial in that action is conducted is called the forum.

SIDE BAR—FORUM NON CONVENIENS

Forum non conveniens means “inconvenient forum.” Although there are rules which govern where a lawsuit must be filed, sometimes the location is inconvenient for the witnesses or parties. If a party makes an adequate showing of inconvenience, the principle of forum non conveniens allows a judge to decline to hear a case even though the court is an appropriate court for the case.

Example: Vince and Claire’s divorce case was decided in Miami, Florida, but both have since moved to Orlando. Any request for modification must first be filed in Miami, but either party could request that the court decline to hear the case, and instead, transfer it to Orlando for the hearing.

MOTIONS: A motion is a written request to the court. When a party asks the court to take some kind of action in the course of litigation, other than resolving the entire case in a trial, the request is made in the form of a motion. Motions are often made before trials to resolve procedural and preliminary issues, and may be made after trials to enforce or modify judgments. Motions may also be made to resolve legal issues in the case if there is no disagreement about the facts. Usually called a motion for summary judgment or a motion for summary adjudication of the issues, these motions can resolve all or most of the issues in a case without the need for a trial.

Normally, one side submits a motion, the other side submits a written response, and the court holds a hearing at which the parties give brief oral arguments. (Some motions are considered only on the basis of the writings.) Then the court approves or denies the motion.

SIDE BAR—HEARINGS TO RESOLVE MOTIONS

When a party objects, either in person or in writing, to the other party’s motion, the court must hold a hearing on the matter. If the party against whom the motion was filed fails to show up for the hearing, the proceedings usually go forward without her. In these circumstances, usually the party who filed the motion will normally get what he requested.

If a person is served with a subpoena ordering him to appear at a hearing but fails to show up, he may be guilty of contempt of court and subject to arrest, fine or imprisonment. Therefore, a person who has been subpoenaed but who is unable to attend a hearing when it is scheduled should call or write the court clerk in advance and request a continuance.

An in camera hearing is a hearing held in the judge’s chambers and is not open to the public. In camera hearings usually take place to protect the privacy of the people involved and are common in cases of guardianships, adoptions and custody disputes alleging child abuse.

A family law case might involve any or all of these motions:

Motion for preliminary orders. When a couple separates or files for divorce, a party often needs the immediate intervention of a court to establish alimony, child support, custody and use of property (for example, the car). Couples who are unable to work out arrangements themselves often request a preliminary hearing (also called a temporary hearing) before the judge.

Order to show cause. An order to show cause is an order issued by a judge, requiring a person to appear in court at a hearing and tell the judge (that is, show cause) why the court shouldn’t take a certain action.

Many states allow a spouse or other person victimized by domestic violence to obtain a court order requiring the abuser to appear in court and show cause why the court should not issue a temporary restraining order prohibiting him from further harming the victims. The court can also issue an order requiring an abusive spouse to move out of the family home.

In family law, orders to show cause are also used when a party violates a court order, such as an order to pay alimony or child support. In this situation, the other party will ask the court to hold an order to show cause hearing to determine whether the party who has violated the court order should be held in contempt of court.

SIDE BAR—FAILING TO SHOW UP AT AN ORDER TO SHOW CAUSE HEARING

If a person fails to appear in court when she has been properly ordered to do so, the judge is authorized to issue a warrant (a court order authorizing a law enforcement officer to arrest someone) for her arrest. A warrant issued this way is called a bench warrant.

Example: Joe has fallen behind on his court-ordered child support. Joe’s former wife, Jill, has served Joe with an order to show cause why he should not be held in contempt of court for not complying. Joe failed to appear at the scheduled hearing; the judge issued a bench warrant authorizing the police to arrest Joe and bring him before the judge to answer the charge of contempt.

Motion for a protective order. A protective order is any order issued by a court which is meant to protect a person from harm or harassment. A protective order is commonly used to protect a party or witness from unreasonable or invasive discovery requests (for example, harassing questions in a deposition, or an unnecessary medical examination). Less often, a temporary restraining order issued to prohibit domestic violence is referred to as a protective order.

Motion to quash service of process. When a person who has been served with court papers believes that the service was not made according to law, he can file a motion to invalidate or quash the service. If the motion is successful, service must be tried again. The reasons a court might quash service of process include improper service techniques (such as leaving the papers on a doorstep) or service outside the geographical jurisdiction of the court.

Motion to bifurcate. Bifurcation is the act of dividing a trial into two parts. In family law, bifurcation occurs when the divorce itself is determined separately from the related issues of custody and visitation, child support, alimony, and property division.

Motion to join a party. Joinder is the process of bringing someone into an existing lawsuit as an additional party because his rights or obligations are involved in the case. For example, when a court divides a pension as marital property during a divorce, the pension plan administrator often must be joined as a party to the divorce, so that if the court awards a spouse payments under the other spouse’s pension, the plan administrator can make the proper arrangements. This is necessary because most pension plans prohibit the administrators from paying anyone other than the employee or other person named as beneficiary—that is, someone entitled to benefits—of the pension.

Motion to compel discovery. When parties disagree over whether certain

information is obtainable through the discovery process, they can request that the court resolve their dispute. They submit their requests in the form of written motions. Normally, a discovery motion asks either for an order compelling the other side to respond to discovery requests or for a protective order limiting the discovery efforts of the other side.

Motion for sanctions. When a court concludes that a party to a lawsuit or an attorney has misused the legal process in some way, a penalty called a sanction may be imposed. Common sanctions are fines (to be paid to the other side or to the court), limitations on a party’s ability to make certain arguments or to conduct discovery, and in extreme cases, a finding of contempt of court.

Example: Nate has sued Lois for a breach of their cohabitation agreement. Lois scheduled Nate’s deposition, but Nate did not appear, nor did he call to say he needed to reschedule or couldn’t attend. As a result, Lois was out the money she paid the court reporter and her attorney. To recover it, she filed a motion asking the court to compel Nate to appear for his deposition and also asking the court to impose sanctions against Nate in the amount of money his non-cooperation cost her.

ORDER: An order is the decision rendered by a judge after a hearing.

DISCOVERY: The formal procedures used by parties to a lawsuit to obtain information before a trial is called discovery. Discovery helps a party find out the other side’s version of the facts, what witnesses know, and other evidence. Rules dictating the allowable methods of discovery have been set up by Congress (for federal courts) and by state legislatures (for state courts).

Common discovery devices include:

Deposition—a proceeding in which a witness or party is asked to answer questions orally under oath before a court reporter.

Interrogatories—written questions sent by one party to the other party for the latter to answer in writing under oath.

Request for admission—a request to a party that he admit certain facts. One party sends the other a request for admission so that basic issues the parties agree upon can be resolved and not have to be proven if the parties go to trial.

Request for physical examination—a request to a party that he be examined by a doctor if his health is at issue.

Request for production of documents—a request to a party to hand over certain defined documents. In family law cases, parties often request from each other bank statements, pay stubs and other documents showing earnings, assets and debts.

Request for inspection—a request by a party to look at tangible items (other than writings) in the possession or control of the other party. Items to be inspected include houses, cars, appliances and virtually any other physical item.

Subpoena—an order telling a witness to appear in court or at a deposition. A subpoena is issued by the court, and if the witness fails to comply, he can be held in contempt of court.

Subpoena duces tecum—an order telling a witness to turn over certain  documents to a specific party or to bring them to a scheduled deposition. A subpoena duces tecum is issued by the court, and if the witness fails to comply, he can be held in contempt.

The scope of information obtainable through discovery is quite broad and

not limited to what can be used in a trial. Federal courts and most state courts allow a party to discover any information “reasonably calculated to lead to the discovery of admissible evidence.” Because of this broad standard, parties often disagree about what information must be exchanged and what may be kept confidential. These disputes are resolved through court rulings on discovery motions.

Example 1: Ellen and Amy have been living together for seven years and have purchased a car, some furniture and many household goods. They’re going separate ways, but cannot agree on how to divide their property. Their dispute becomes nastier as the days progress, and Ellen sues Amy, claiming Amy has breached an oral agreement. Amy’s lawyer wants to know Ellen’s understanding of how they owned their property, so he schedules Ellen’s deposition. He will ask Ellen what she understood to be the arrangement and further will ask her to identify any documents supporting her position, such as agreements, receipts or bank statements.

Example 2: Bill and Bernice are divorcing. The court ordered Bill out of the family home to allow Bernice to stay there with the children. Bill and Bernice have decided to sell the house, but don’t agree on the value, and therefore each plans to have an appraiser submit an appraisal. If Bernice refuses to allow Bill’s appraiser access to the house, Bill will have to request an inspection.

STIPULATIONS: A stipulation is an agreement between parties to a lawsuit that a certain fact may be considered true or that a certain procedure may be followed in court. Most stipulations are put in writing, but this is usually not a requirement.

Example: Pedro and Maria are divorcing. During their marriage they bought a house, which they now agree is worth $140,000. They disagree, however, as to what portion is Maria’s separate property, what portion is Pedro’s separate property and what portion is marital property. Before their trial, Pedro and Maria will stipulate that the house’s value is $140,000.

SETTLEMENT CONFERENCE: Many states now require parties to family law disputes and their attorneys to meet before trial with a judge to see if the matter can be settled. At these settlement conferences, each side makes offers and the judge comments on their validity and fairness. The judge has no official power to make the parties settle at this stage, but usually strongly encourages settlement by bluntly critiquing the parties’ trial positions and indicating how she is likely to rule on disputed issues during the trial.

MINI-TRIALS AND EARLY NEUTRAL EVALUATIONS: Many courts encourage the parties to settle without the need for a formal trial by holding a mini-trial in which the parties present their evidence and the court decides the outcome. While either party is free to proceed to a formal trial, regardless of the mini-trial’s outcome, few do.

Another device to get the parties to settle—called early neutral evaluation—is to have them present their case to an impartial person (often a retired judge or experienced lawyer) and receive from that person an honest assessment of who is likely to prevail in trial.

DUE PROCESS: Due process is best defined in one word—fairness. Throughout the U.S.’s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.

Example: Ezra and Sharon married in New York and had a son, Darwin. They

divorced and Sharon moved to California; Darwin stayed with Ezra. Darwin later moved to California to live with Sharon; Sharon sued Ezra for child support in California. Ezra claimed that because he didn’t live in California and had never been to California it would be unfair (a denial of due process) for him to defend the child support lawsuit in California. The U.S. Supreme Court agreed, saying that Sharon should bring her child support request in New York. (This example is based on a case called Kulko v. Superior Court, 436 U.S. 84 (1978).)

RETROACTIVE APPLICATION OF LAWS: A statute passed by a legislature usually states that it shall only apply after a certain date. Occasionally, though, laws are made retroactive—that is, they apply to events that happened before the law was passed. (Criminal laws are never retroactive—the legislature cannot make a past act a crime.) If the statute itself doesn’t indicate the date it is to become effective, courts normally interpret it to have future effect only.

Example: Assume that the Minnesota legislature passes a law requiring a couple to undergo a blood test as a requirement of being married. The legislature intends that it apply to couples both planning to marry and already married. (Currently, Minnesota does not require blood tests before marriage.) Applying the law to already married couples is a retroactive application of the law. A married Minnesotan might challenge the law arguing that applying it to her is unconstitutional because she had no expectation of ever having to undergo a blood test as a requirement of being married in Minnesota.

ESTOPPEL: In certain situations, the law refuses to allow a person to deny facts when another person has relied on and acted in accordance with the facts on the basis of the first person’s behavior. This is called estoppel.

There are two kinds of estoppel.

Collateral estoppel prevents a party to a lawsuit from raising a fact or issue which was already decided against him in another lawsuit. For example, if Donna obtained a paternity judgment against Leroy and then sued him for child support, Leroy would be collaterally estoppel from claiming he isn’t the father.

Equitable estoppel prevents one party from taking a different position at trial than she did at an earlier time if the other party would be harmed by the change. For example, if after obtaining the paternity judgment, Leroy sues Donna for custody, Donna is now equitably estopped from claiming in the custody suit that Leroy is not the father.

RES JUDICATA: Res judicata is Latin for “a thing adjudicated.” This means that once a matter has been decided by a court, it won’t be disturbed. Res judicata usually applies when a conflict arises between the same parties over the same facts that were resolved in an earlier case. The court refuses to hear the matter a second time, citing res judicata.

COLLATERAL ATTACK: When a separate and new lawsuit is filed to challenge some aspect of an earlier and separate case, it is called a collateral attack on the earlier case. This is different than an appeal, which is a challenge to some aspect of a decision made in the same case.

Example: Sam obtains a divorce in Nevada without properly notifying his wife, Laurie. Laurie files a later lawsuit seeking to set aside the divorce and start the divorce proceedings over. Laurie’s case is a collateral attack on the divorce.

The law wants judgments to be final whenever possible, and thus collateral attacks are discouraged. Many are filed, but usually only succeed when an obvious injustice or unconstitutional treatment occurred in the earlier case.

EX PARTE: Ex parte means “by one side.” Although a judge is normally required to meet with all parties in a case and not with just one, there are circumstances where this rule does not apply and the judge is allowed to meet with just one side (ex parte). In addition, sometimes judges will issue temporary orders ex parte (that is, based on one party’s request without hearing from the other side) when time is limited or it would do no apparent good to hear the other side of the dispute. For example, if a wife claims domestic violence, a court may immediately issue an ex parte order telling her husband to stay away. Once he’s out of the house, the court holds a hearing, where he can tell his side and the court can decide whether the ex parte order should be made permanent.

EQUITABLE POWER: If strict application of the law would be unfair to a person, most courts have the authority, called equitable power, to bend the rules to prevent such an outcome. English Courts of Equity were established hundreds of years ago to temper the legalistic rigors of English common law. Equity principles were adopted by U.S. courts when this country was formed. Today, when a court exercises equitable powers, it often does so to prevent one party from taking unfair advantage of another or from profiting by her own wrongdoing.

CLEAN HANDS DOCTRINE: Under the clean hands doctrine, a person who has acted wrongly, either morally or legally—that is, who has “unclean hands”—will not be helped by a court when complaining about the actions of someone else.

In family law, the doctrine is invoked most often in two situations. First, a parent who kidnaps and then later requests custody will often be denied custody unless the child is in danger of harm from the other parent. Second, a spouse who conceals assets or otherwise misappropriates marital property during the marriage or separation will often be penalized in the division of property at the divorce by being awarded less than her fair share. This, of course, requires that the innocent spouse learn of the concealment or misappropriation.

STATUTE OF LIMITATION: A statute of limitation is a law that sets the deadline for filing a lawsuit in a particular kind of dispute. These deadlines vary depending on the state, the type of issue and the circumstances of the case. A lawsuit filed after the deadline will be thrown out of court.

In California and Texas, for example, when one person breaches a written contract, the other person has four years to sue; this is called a four-year statute of limitation. A personal injury suit, such as an assault and battery case brought by the victim of domestic violence, must be brought within one year from the date of the injury in California and within two years in Texas.

There are no statutes of limitation for filing a no-fault divorce. Filing a fault divorce, however, usually involves a time limitation; for example, an innocent spouse has only a set period of time after learning of her spouse’s adultery (or desertion or cruelty) to file for divorce on this ground. Failure of one spouse to file the fault divorce within the time period may provide the other spouse with a defense to the divorce.

PRESUMPTION: A fact assumed to be true under the law is called a presumption. For example, a criminal defendant is presumed to be innocent until the prosecuting attorney proves beyond a reasonable doubt that she is guilty. Presumptions are used to relieve a party from having to actually prove the truth of the fact being presumed. Once a presumption is relied on by one party, however, the other party is normally allowed to offer evidence to disprove (rebut) the presumption. The presumption is known as a rebuttable presumption. In essence, then, what a presumption really does is place the obligation of presenting evidence concerning a particular fact on a particular party.

CONCLUSIVE PRESUMPTION: The law does not allow some presumptions to be disproved, no matter how strong the evidence to the contrary. These are called conclusive presumptions. The presumption that a child born to a married couple is considered the child of the husband is often irrebuttable (that is, you can’t argue with it even if you can prove the husband isn’t the father). A growing number of courts, however, have held conclusive presumptions to be unconstitutional (too unfair, and thus a denial of due process), especially in the area of paternity, because of blood tests which can exclude paternity with 100% accuracy.

FULL FAITH AND CREDIT: Full faith and credit is a legal principle requiring judges to recognize and enforce valid decrees and judgments issued by courts in other states. Thus, a Wisconsin judgment for back alimony can be enforced in Idaho, if the recipient takes the steps necessary to convert it to an Idaho judgment.

In the past, states often did not afford full faith and credit to custody decisions of courts in other states, preferring instead to decide the issues on the evidence before them. This often led to contradictory custody orders and sometimes children were kidnapped and thrown back and forth. Now, however, the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act require states to give full faith and credit to custody decisions rendered in other states.

COMITY: Comity is the legal doctrine under which countries recognize and enforce each others’ legal decrees. Comity usually arises in two situations in family law. The first is where a divorce is granted by another country. If both parties were present and consented to the divorce, there is usually no problem with the U.S. recognizing the foreign divorce decree. The second situation arises in child custody cases. The Uniform Child Custody Jurisdiction Act requires that state courts recognize properly entered custody decrees of other nations; in turn, many other countries are beginning to recognize U.S. custody orders.

PRESENTING THE CASE: Witnesses who testify at a trial or hearing are questioned by two basic techniques—direct examination and cross-examination. Lawyers, or the parties themselves if they aren’t represented by lawyers, do the examining (questioning).

DIRECT EXAMINATION: Direct examination consists of questions asked in a direct form, that is, a form that does not suggest the answer, such as “Where were you on July 18th?” Direct examination is conducted of witnesses who are friendly to the questioner.

CROSS-EXAMINATION: A question that suggests the answer—for example, “You were at the shop on July 18th, weren’t you?”—is called a leading question and can be used only on cross-examination. Cross-examination questions are asked by the party whose position is opposed by the witness.

Sometimes, when parties aren’t represented by lawyers, these formal rules of questioning are not used. Instead, witnesses use narrative formats and simply tell their stories.

SIDE BAR—EXPERT WITNESS

An expert witness is a person who testifies at a trial because she has special knowledge in a particular field. This entitles her to testify about her opinion on the meaning of facts. Non-expert witnesses are only permitted to testify about facts they observed and not their opinions about these facts. In family law trials, common expert witnesses include:  * actuaries, who testify about values of spouses’ pension plans for the purpose of dividing them at divorce child psychologists or development specialists, who testify about the best interests of the child when custody or visitation is in dispute, appraisers, who testify about property values when the parties cannot agree, and career counselors, who testify about a homemaker’s ability to return to the work force for the purpose of determining the amount and duration of alimony.

BURDEN OF PROOF: The burden of proof refers to the obligation of a party to prove his allegations during a trial. Typically, the plaintiff must prove whatever allegations he included in his complaint in order to win his case. The defendant is given the opportunity to submit evidence to rebut the plaintiff’s case. To rebut generally means to contest a statement or evidence presented by another.

STANDARD OF PROOF: The amount of evidence that a plaintiff (or prosecuting attorney, in a criminal case) must present in a trial in order to win is called the standard of proof. Different cases require different standards of proof depending on what is at stake.

The common standards are:

Beyond a reasonable doubt (criminal cases)--for a criminal defendant to be convicted of a crime, the prosecutor must prove her case to the point that the jurors have no reasonable doubts in their minds that the defendant did whatever he is charged with having done.

Clear and convincing evidence (civil cases involving the potential loss of important interests such as the termination of parental rights)- for a party to prove a case under this standard, she must show something more than it is more likely than not, but not as much as beyond a reasonable doubt. No legal scholar has ever been able to define clear and convincing evidence more precisely than that.

Preponderance of the evidence (most civil cases including fault divorces)--preponderance of the evidence generally means that a party will win if she can show that it is more likely than not that her contention is true.

RULES OF EVIDENCE: Rules of evidence (found in the statutes and court rules of each state) determine what evidence may be admitted into a trial or hearing and under what circumstances.

ADMISSIBLE EVIDENCE: Anything a judge allows a jury (or himself) to consider in reaching a decision during the trial is called admissible evidence because it is “admitted” into evidence. Many types of evidence are not admissible because they don’t satisfy legal standards of reliability or fairness. These standards have developed over hundreds of years and are constantly subject to change.

Example: Laura is six years old, and there is evidence that she has been abused by her father. Under traditional evidence rules, any statements Laura made outside of the courtroom to a counselor, parent or other person concerning the abuse would be considered inadmissible evidence. Only her statements made in court in front of her father would be admissible. Because of the difficulty in having a child speak freely in a court, many states are now experimenting with allowing children to testify on videotape outside the courtroom and then showing the tape in court.

The following are types of admissible evidence:

Admissions. An admission is any statement made by a party to a lawsuit (either before a court action or during it) which tends to support the position of the other side or diminish his own position. For example, if a husband sues his wife for divorce on the grounds of adultery, and she states out of court that she has had affairs, her statement is an admission. Any admission made by a party is admissible evidence in a court proceeding, even though it is technically considered hearsay (which is normally inadmissible). Attorneys tell their clients not to talk to anyone about their case or about the events leading up to it in

order to prevent their clients from making admissions.

Character evidence. Evidence introduced in a trial that bears on the truth and honesty of a witness or party is termed character evidence. Character evidence includes criminal convictions and reputation in the community for honesty. Character evidence is usually permitted when a person’s honesty is an issue, such as when a criminal defendant testifies or has been charged with perjury or fraud. It is not permitted when the defendant does not testify and the crime he is charged with doesn’t involve the defendant’s truthfulness (for example, the defendant is charged with illegal possession of drugs). Although used infrequently in civil cases, character evidence may be given in custody cases where the honesty of a party arguably affects her ability to be a good parent (for example, in the case of a habitual liar), or in cases of fault divorce.

Circumstantial evidence. Circumstantial evidence is best explained by saying what it is not—it is not direct evidence from a witness who saw or heard something. Circumstantial evidence is a fact that can be used to infer another fact.

Example: Bart is suing his wife, Pam, for a divorce, claiming she is having an affair with Tony. Tony’s fingerprints are found on a book in Bart and Pam’s bedroom. A judge or jury may infer that Tony was in the bedroom. The fingerprints are circumstantial evidence of Tony’s presence in the bedroom. Circumstantial evidence is usually not as good as direct evidence (an eyewitness saw Tony in the bedroom) because it is easy to make the wrong inference—Pam may have loaned Tony the book and then carried it back to the bedroom herself after getting it back.

Circumstantial evidence is generally admissible in court unless the connection between the fact and the inference is too weak to be of help in deciding the case.

SIDE BAR—SUPPORTING THE EVIDENCE

Authentication of evidence. When a document or other physical item is offered into evidence at trial, it is necessary to show that the item is genuine. This process is called authentication. One way to authenticate a document is by the testimony of the person who wrote or signed it; another is by the testimony of an expert witness such as a document examiner or handwriting analyst.

Corroboration. Corroboration is additional evidence that supports an accusation or item of circumstantial evidence. For instance, in the case of alleged adultery, corroboration might consist of a love letter or a hotel clerk’s testimony that the spouse and the co-respondent rented a room together.

Evidence rules are more often than not defined by what is not admissible.

Here are examples of some often inadmissible evidence:

Immaterial evidence. Evidence deemed too unconnected with the main issues of a case is considered immaterial and will be excluded from a trial.

Incompetent evidence. Evidence considered inherently unreliable is called incompetent and is not admissible in a trial. Examples of incompetent evidence include secondhand information, observations made while the witness was drunk or under the influence of drugs, and self-serving statements.

Irrelevant evidence. Relevancy is the logical connection between facts or statements, especially those offered as evidence in court. Before evidence is admitted during a trial or hearing, it must be shown to be relevant to the issues in the case. Thus, the fact that a spouse has three bank accounts is irrelevant to the issues in a custody hearing, but may be quite relevant in one distributing the marital property.

Example: Grace and Ian are divorcing in Michigan, an equitable distribution state. Grace and Ian have sold their marital home, and the only issue in their case is the division of the proceeds. The house was purchased with a combination of Grace’s pre-marital savings (her separate property), Ian’s pre-marital savings (his separate property), and their earnings during marriage. At the trial, Ian asks his friend Walter to testify that Grace didn’t like the house and never wanted to buy it. Because Walter’s testimony is irrelevant to dividing the proceeds, the judge will not let Walter testify.

Privileged communications. In judicial proceedings, the law allows people to refuse to disclose the contents of certain privileged conversations and writings. Communications between an attorney and client, husband and wife, clergyperson and penitent, and doctor and patient are all privileged. In a few states, the privilege extends to a psychotherapist and client.

To qualify for privileged status, communications must generally be made in a private setting (that is, in a context where confidentiality could reasonably be expected). The privilege is lost (waived) when all or part of the communication is disclosed to a third person.

These privileges are held by the client (but not the lawyer), the patient (but not the doctor or psychotherapist), the speaking (but not the spoken-to) spouse and both the clergyperson and the penitent. The lawyer, doctor, psychotherapist and spoken-to spouse, however, cannot reveal the communication without the other person’s consent. The client, patient, speaking spouse, clergyperson and penitent may waive the privilege (that is, testify about the conversation) and also may prevent the other person from disclosing the information.

Example: Sue and Martin are divorcing. When Martin first left Sue, he emptied out a joint bank account and placed that money in a separate account in another state. He refuses to tell Sue where the money is, but he has told his lawyer, Ann. The discussion between Martin and Ann is privileged, and unless Martin authorizes Ann to tell Sue where the money is, or unless Martin himself tells another person about his conversation with Ann, Ann cannot be forced to disclose the information.

Marital communications privilege. Courts cannot force husbands and wives to disclose the contents of confidential communications made during marriage. The purpose of the privilege is to protect and promote honesty and confidence within marriages.

Example: Sandy has a budding marijuana brownie business that she operates out of her home. Sandy has told her husband, Doug, about her endeavors. All private conversations between them are privileged; that is, if Sandy is ever prosecuted for her business, she can prevent Doug from disclosing what he knows.

Spousal privilege. Courts cannot force husbands and wives to testify against each other. For example, when a former husband trying to gain custody of his child called his ex-wife’s new husband as a witness to testify about her treatment of the child, the court refused to force him to testify on the grounds that it could jeopardize an existing marriage.

SIDE BAR—HEARSAY—ADMISSIBLE OR INADMISSIBLE?

Hearsay is any statement made outside a hearing or trial that is presented at the hearing or trial to prove the truth of the contents of the statement. All evidence rules begin with the premise that hearsay cannot be used in court because secondhand testimony is considered unreliable and because the person who made the original statement is often unavailable for cross-examination. Statements in the forms of letters, affidavits, declarations, diaries, memos, oral statements, notes, computer files, legal documents, purchase receipts and contracts all constitute hearsay when they are offered to prove that their

contents are true.

Testimony during a hearing or trial is not hearsay unless the witness tries to repeat something someone else said or wrote. In addition, a statement introduced to prove something other than its truth is not hearsay. For example, testimony may be offered to show the speaker’s state of mind.

Example: Dana and Bruce were fighting, and Dana shouted “Bruce, you are a lousy bastard.” Marla heard the argument and was asked to testify at Dana and Bruce’s divorce trial. Marla was permitted to repeat the statement “Bruce, you are a lousy bastard,” because it is not hearsay. It was not introduced at the trial to prove that Bruce has lice or is an illegitimate child, but rather to show that Dana was angry.

A witness’s earlier out-of-court statement may be presented at a trial or hearing if it contradicts his in-court testimony, because the statement is being used to cast doubt on the witness’s credibility, rather than prove the statement’s truth or falsity.

A great many exceptions to the hearsay rule exist and much hearsay tends to be admitted under these exceptions. Evidence that qualifies as exceptions is usually statements which are reliable and believed to be un-fabricated.

Some common exceptions are:

Utterances made at the time of a startling event that provoked the observer into speaking (for example, seeing one’s spouse in bed with someone else);

Statements describing a current condition (for example, “I feel sick.”);

Prior testimony from a hearing, trial or deposition, religious records, family records and marriage certificates, property documents (for example, deeds);

Statements made against one’s own monetary or penal interest (that is an admission of a crime);

Declarations made by someone who believes his death is imminent;

Business records made in the regular course of business;

Official records,  ancient documents, and court judgments.

DECISIONS

INTERLOCUTORY AND FINAL JUDGMENT: Interlocutory means interim, provisional or not final. In some states, a divorce occurs in two phases. The first is often called the interlocutory stage, where all the issues (for example, division of property, alimony, child support, custody and visitation) get decided either by agreement of the spouses or by a judge after a hearing or trial.

The second phase, when the judgment of divorce becomes final, doesn’t occur until after a waiting period—usually two to six months. The waiting period (sometimes referred to as the cooling-off period) is designed to give the divorcing couple every opportunity for reconciliation. It begins on the date the interlocutory judgment is entered. When the time period passes, if no appeal is pending and if the appropriate papers have been filed with the court, the final judgment is entered.

In some states, a party who is eager to remarry as soon as possible can get the waiting period shortened or set aside entirely, if the judge is convinced that the reasons are good.

SIDE BAR—NUNC PRO TUNC

Nunc pro tunc literally means “now for then.” Occasionally, a court or party to a divorce forgets to file the papers necessary to obtain the final decree (after the interlocutory judgment has been granted), and the result is that the divorce never becomes final. If the oversight presents a problem (for example, one party has already remarried, or there is a tax advantage to being divorced earlier), the court may agree to issue a nunc pro tunc order, which grants the final divorce retroactive to the earlier date.

PENDENTE LITE: Pendente lite means “pending the litigation.” When the court makes an order, for example, for temporary alimony or child support, which lasts only until the date of a divorce trial or until the parties to a lawsuit work out a settlement, it is a pendente lite order.

Pendente lite should not be confused with lis pendens. Lis pendens also means pending lawsuit. But lis pendens is a document filed in the public records of the county where particular real property is located stating that a pending lawsuit may affect the title to the property. Because nobody wants to buy real estate if its ownership is in dispute, a lis pendens notice effectively ties up the property until the case is resolved. Lis pendens notices are often filed in divorce actions when there is disagreement about selling or dividing the family home.

RULING: Any decision made by a judge during the course of litigation is called a ruling. For example, if a court grants a father custody after a trial on the custody issue, that is a ruling. Also, if a court sustains or overrules an objection to evidence raised during a trial, that is a ruling.

JUDGMENT: A final decision made by a judge on a material issue during a case is termed a judgment. A judgment can provide all or a portion of the relief sought in a case, including property division, alimony, child support, custody or an injunction.

In most states, the court order granting a divorce and ruling on the issues associated with the divorce (alimony, child support, custody, visitation and division of property) is called a decree. Decrees can be temporary, interlocutory (semi-permanent) or permanent. For all practical purposes, a decree is the same thing as a judgment. 

JUDGMENT NISI: Nisi is Latin for “unless.” A judgment nisi is an intermediate judgment which will become final unless a party appeals or formally requests the court to set it aside. An interlocutory decree is properly referred to as a judgment nisi.

ENTRY OF JUDGMENT: When a court judgment (such as a judgment of divorce) is actually written into the official court records by the court clerk, the judgment is “entered.” The court clerk sends a notice of the entry to each party. The date the judgment is entered can be important. For example, if one party wants to appeal, he usually has ten to 30 days from the date of entry of judgment to file a paper indicating his intent to appeal. Also, some states require an individual to wait a period of time (20 days to 18 months) after the entry of judgment of divorce before remarrying.

FINDINGS OF FACT AND CONCLUSIONS OF LAW: After trial of a family law case, the judge often will issue findings of fact and conclusions of law, especially if requested to do so by a party. These set forth the facts the judge found to be true and the conclusions of law he reached regarding those facts. This allows a losing party to know how and why the judge reached his decision and whether an appeal is warranted. If the losing party appeals, the appellate court will determine whether the factual findings are supported by the evidence and whether the legal conclusions are correct. If the court answers either question in the negative, the case will usually be reversed and sent back to the trial court for a new trial.

AWARD: Award means the amount and/or form of a judgment a judge or jury gives the successful party in a lawsuit. It is often, but not always, an amount of money.

Example: In a divorce case, one party might be awarded the divorce, $300 per month in alimony, custody of the children, $600 per month in child support and the family home. The other party might be awarded the family business.

ACTUAL DAMAGES: When damages, which have been suffered by someone as a result of another’s wrongdoing, can be precisely measured, they are called actual damages.

Examples of actual damages are:

Loss of income because of an injury, medical expenses, costs of repairing damaged property, and  specific business losses occurring, because of a breach of a contract.

Actual damages are rarely awarded in family law cases, although some states now allow a parent to recover from his child’s other parent the actual damages suffered if thwarted when trying to exercise visitation rights. An example is the visiting parent who buys a non-refundable plane ticket to have his child visit him, only to find out that the child has suddenly been shipped off to his grandmother’s.

PUNITIVE DAMAGES: Punitive damages are damages (money) awarded by a court to the prevailing party in a lawsuit to punish the other party for her behavior and set an example for others. Actual damages are awarded to compensate a party for loss he has suffered. Most family law cases do not include punitive damages because these cases mainly involve dividing property, deciding child support and alimony, awarding custody or granting adoptions. A few family law cases, however, especially those for monetary compensation where there has been domestic violence or where one party has committed fraud against the other concerning marital property, may include punitive damage awards.

EQUITABLE RELIEF: In many situations, a court cannot achieve a fair result simply by awarding the winner a sum of money. A non-monetary award by a court is called equitable relief. For example, if a woman is the victim of domestic violence, a later award of money may compensate her for her medical costs, but will not prevent her from being further injured. In this situation a court may grant equitable relief in the form of a temporary restraining order (TRO), ordering the abuser to stop the abuse and leave the family home. Violation of the TRO (called contempt) can be punished by a jail sentence.

Other examples of equitable relief include:

Ordering property returned to its owner. This may arise if one spouse locks the other out of the family home and refuses to turn over his belongings.

Rewriting a divorce agreement (or any other contract) to reflect the actual intentions of the parties if a mistake was made in drafting.

Ordering an agreement, such as a contract for sale of a house, to be carried out.

INJUNCTION: A court order requiring a person to do (or preventing a person from doing) a certain action is called an injunction. For example, if a party has threatened to remove marital property, or has threatened to kidnap, a court might prohibit the party from touching any marital property or removing the child from the county.

Emergency injunctions that are in effect only a short time are called temporary restraining orders. Courts also issue permanent injunctions that stay in effect indefinitely.

APPEAL: When one or both parties to a lawsuit disagree with the result in the trial court, it is usually possible to get a higher court (called an appellate court) to review the decision. Normally, an appellate court reviews only whether the trial court followed the correct law and procedures, and no evidence is presented. Some states have two levels of appeals courts; an appeal is usually first considered by an intermediate court (often called a court of appeals). If a party is still unhappy with the result, it is sometimes possible to get the state’s highest court (usually called the supreme court) to review the case.

To appeal the trial court’s decision, a notice must usually be filed with the trial court within a short period of time (usually about 30 days) after the entry of judgment by the court clerk.

The appellate court will require that both sides submit briefs and may also require the parties to orally argue before the court. After weighing the evidence submitted, the court makes its ruling, called a holding.

The likely outcome of the appeal will be one of the following:

Affirm. The act of an appellate court upholding a decision of a trial court or a lower appellate court is called affirming the decision.

Remand. When an appellate court sends an appealed case back to the trial court for further action, the case is said to be remanded. This usually happens if the trial judge has made an error that requires a new trial or hearing. For example, assume that a trial court refuses to allow a party to introduce certain evidence (believing it to be inadmissible under the hearsay rule). If the appellate court decides that the evidence should have been admitted and that the exclusion of the evidence was prejudicial to the party offering it, the appellate court would likely remand the case for new trial and order the evidence introduced.

Vacated judgment or opinion. When an appellate court replaces a decision issued by a trial court or lower appellate court with its own opinion or judgment, the higher court usually declares the lower court’s opinion or judgment vacated. A vacated opinion or judgment is considered to have never existed and cannot be used as authority when deciding similar future cases.

Reversal. If an appellate court rules that a trial court or lower appellate court made errors that may have caused an incorrect outcome in a case, the appellate court can do a number of things, including:

Reverse (wipe out) the outcome and send the case back for a new trial, if the error occurred during trial, substitute a new decision, if the error occurred at the first appeal, or modify the outcome, for example, reduce the amount of damages.

In deciding an appeal, the court applies the following standards to the

behavior of the trial judge:

Abuse of discretion. When judges make decisions on questions of child custody, alimony and property division, they must, of course, follow the standards set out by state law. These standards, though, often allow judges a lot of leeway (which is called discretion). Judges are given this discretion so they can make decisions that are fair in a particular case, instead of being locked into a formula that may not suit every situation.

The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the judge in the first place. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.

Erroneous. When a trial court makes a mistake about the law or finds certain facts to be true without adequate evidence, the court is in error. If the error affects the outcome of the case, it is called a prejudicial error, and the decision may be reversed on appeal. If this happens, the case is usually returned to the trial court for new trial. If, however, the error made in the course of a trial does not affect the outcome of the case (called a harmless error), an appellate court will not reverse the trial court decision.

Arbitrary and capricious. When a judge makes a decision without reasonable grounds or adequate consideration of the circumstances, it is said to be arbitrary and capricious and can be invalidated by an appellate court on that ground. There is, however, no set standard for what constitutes an arbitrary and capricious decision; what appears arbitrary to one judge may seem perfectly reasonable to another.

Example: Paul and Myra, both in their mid-30s, are involved in a disputed custody case. Both parents are fit to have custody of the child, so the judge must review all relevant information and decide what is in the best interest of the child. Myra raised the fact that when Paul was 16, he pleaded guilty to possessing marijuana. Based solely on Paul’s previous conviction, the judge awarded custody to Myra. Paul appealed, arguing that the judge’s decision was arbitrary and capricious, that his conviction nearly 20 years earlier was irrelevant, and that there is no reasonable basis to support the decision. The

appellate court judges will make the decision.

SIDE BAR—FRIVOLOUS APPEAL

An appeal without any arguable legal basis is called a frivolous appeal and can be dismissed (thrown out) by the appellate court. Because lawyers can create a plausible legal basis for almost any argument imaginable, however, few appeals are ever ruled frivolous. The most outrageous time-waster is usually only said to “border on the frivolous.”

ALTERNATIVES TO COURT: Any process that helps people put an end to their disputes is called dispute resolution. While courts have been a central feature of our public dispute resolution system for a long while, most disputes have traditionally been solved by consensus (agreement of the disputants) with the help of community and religious leaders, with no government intervention being necessary.

In recent years, as the courts have become more and more crowded, a number of alternative dispute resolution techniques (ADR) have arisen to aid people in solving their disagreements and getting on with their lives. And the courts themselves are increasingly relying on these techniques to clear their crowded calendars and help parties to solve their own problems.

The most common forms of alternative dispute resolution (sometimes referred to as appropriate dispute resolution) are mediation, arbitration, conciliation and a combination of mediation and arbitration called med-arb (in which the mediator will decide the issues for the parties if they fail to reach agreement in the mediation).

Mediation. Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle the dispute. The mediator, however, does not have the power to impose a solution on the parties.

Mediation is often used to help a divorcing or divorced couple work out their differences concerning alimony, child support, custody, visitation and division of property. Some lawyers and mental health professionals employ mediation as part of their practice. Six states require mediation in custody and visitation disputes. Eighteen states allow courts to order mediation while one state permits voluntary mediation. A few states have started using mediation to resolve financial issues as well.

Conciliation. In conciliation, the parties meet un-antagonistically with a third party who helps them reach an agreement. It is very similar to mediation.

Arbitration. Arbitration is the submission of a dispute to an impartial third person or persons. The arbitrator or arbitrators are selected directly by the parties or are chosen in accordance with the terms of a contract in which the parties have agreed to use a court-ordered arbitrator or an arbitrator from the American Arbitration Association. If there is no contract, usually each party chooses an arbitrator and the two arbitrators select a third. When parties submit to arbitration, they agree to be bound by and comply with the arbitrators’ decision. The arbitrators’ decision is given after an informal proceeding where each side presents evidence and witnesses.

Some arbitration proceedings are mandatory (enforced by statute), such as many labor disputes. Other arbitration proceedings are selected in advance and written into contracts. In fact, many couples who sign cohabitation agreements or divorce agreements include a clause agreeing to go to arbitration if any dispute should arise, thereby avoiding the delay, expense, bitterness and formality of litigation. Other arbitration proceedings are chosen by the disputing parties after the conflict arises, but are also to avoid the delay, expense, bitterness and formality of courts.

CIVIL & CRIMINAL

TORT: A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones. (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties.)

Under traditional law, family members were prohibited from suing each other for torts. The justification was that allowing family members to sue each other would lead to a breakdown of the family. Today, however, many states recognize that if family members have committed torts against each other, there often already is a breakdown in family relationships. Thus, they no longer bar members from suing each other. In these states, spouses may sue each other either during the marriage or after they have separated.

Normally, tort lawsuits against a spouse are brought separate and apart from any divorce, annulment or other family law case. Alabama, Georgia, Nevada, New York and Tennessee, however, allow or encourage combining the tort case with the family law case; New Jersey requires it.

The jurisdictions that still prohibit one family member from suing another include Arizona, Delaware, Hawaii, Illinois, Iowa, Louisiana, Missouri, Ohio, Texas, Utah, Wyoming and Washington, D.C. These places may make an exception when the tort is intentional. See, for example, Bounds v. Candle, 611 S.W.2d 685 (Texas 1980); Townsend v. Townsend, 708 S.W.2d 646 (Missouri 1986) and Green v. Green, 446 N.E.2d 837 (Ohio 1982).

CRIME: A crime is a wrongdoing classified by the state or Congress as a felony or misdemeanor.

Felony. A felony is a serious crime punishable by at least one year in prison. Some family law felonies include kidnapping and custodial interference (in some states).

People convicted of felonies lose certain rights, such as the right to vote or hold public office. During the term of sentence, the convicted person may also be prohibited from making contracts, marrying, suing or keeping certain professional licenses. Upon release from prison, the convict may also be required to register with the police.

Misdemeanor. A misdemeanor is a crime for which the punishment is usually a fine and/or up to one year in a county jail. Often a crime that is a misdemeanor for the first offense becomes a felony for repeated offenses. All crimes that are not felonies are misdemeanors.

SIDE BAR—CONTEMPT OF COURT—CIVIL OR CRIMINAL

A judge who feels someone is improperly challenging or ignoring the court’s authority has the power to declare the defiant person (called the contemnor) in contempt of court. There are two types of contempt— criminal and civil. Criminal contempt occurs when the contemnor actually interferes with the ability of the court to function properly—for example, by yelling at the judge. This is also called direct contempt because it occurs directly in front of the judge. A criminal contemnor may be fined, jailed or both as punishment for his act.

Civil contempt occurs when the contemnor willfully disobeys a court order. This is also called indirect contempt because it occurs outside the judge’s immediate realm and evidence must be presented to the judge to prove the contempt. A civil contemnor, too, may be fined, jailed or both. The fine or jailing is meant to coerce the contemnor into obeying the court, not to punish him, and the contemnor will be released from jail just as soon as he complies with the court order. In family law, civil contempt is one way a court enforces alimony, child support, custody and visitation orders that have been violated.

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