Divorce Terms & Phrases

ABANDONMENT: When a parent leaves a child without enough care, supervision, support, or parental contact for an excessive period of time.

ANNULMENT OF MARRIAGE: Also called a nullity, an annulment of marriage is a legal action that says your marriage was never legally valid because of unsound mind, incest, bigamy, being too young to consent, fraud, force, or physical incapacity. A judgment of nullity can have a significant impact on property division, spousal support and attorney's fee awards.

APPEAL: When someone that loses at least part of a case asks a higher court (called an "appellate court") to review the decision and say if it was right. This is called "to appeal" or "to take an appeal." The person that appeals is called the "appellant." The other person is called the "appellee."

ASSIGNMENT OF SUPPORT RIGHTS: When a person that gets public assistance (money from the government) agrees to give the state any child support they get in the future. The person gets money and other benefits from the state. So the state can use part of the child support to pay for the cost of that public assistance.

AT-ISSUE MEMORANDUM: A legal paper filed in a civil case that says the case is ready to go to trial.

ATROS: Automatic Temporary Restraining Orders. These orders are set forth on the back of the Family Law Summons and prohibit properly served parties in a family law action from taking a variety of actions without prior court order, including removing a child from the State of California, transferring, disposing, concealing or encumbering real or personal property; cashing, borrowing against, canceling, transferring or changing the beneficiaries of any insurance policy held for the benefit of a party or the parties' minor child; and creating or modifying a nonprobate transfer.

BEST INTERESTS OF THE CHILD: This is the standard courts use when deciding issues involving custody and visitation rights, or whether to approve adoptions and guardianships. This standard requires the courts to consider many factors, including which parent would best provide for the children's health, safety and welfare; what the children's preference is; whether there has been any child or sexual abuse; and whether there has been any domestic violence by one parent to the other parent.

BRIEF: A written statement that each side gives the court to say why the court should decide that they are right.

BURDEN OF PROOF: The obligation of a party to establish the required degree of proof concerning a fact or facts in dispute in the proceeding.

CHILD SUPPORT: Child support is the obligation of a parent to provide financial assistance to his or her minor children. Child support is determined by application of a uniform statewide child support guideline formula that takes into consideration each party's income, the time spent with the children and several other factors. When a party owns a business or has "non-traditional" income, it is often necessary to retain a forensic accountant to prepare a report of what is the party's gross controllable cash flow available for support.

CHILD SUPPORT ARREARS: Child support arrears are more commonly known as "back child support. Child support arrears are created by operation of law when a party fails to pay child support that has been ordered by the Court. The child support arrears accrue interest at the legal rate of 10% per year. This interest rate can be increased to 72% per year by serving the appropriate paperwork. A party that is owed child support has numerous different methods to obtain the child support arrears owed to them, including seizing money in the obligor's bank account; recording a judgment against any real property owned by the obligor; requesting that the obligor's driver's license, passport or professional license be suspended; seizing tax refunds of the obligor; and requesting the obligor be jailed.

CHILD SUPPORT ENFORCEMENT AGENCY: Also known as an "IV-D agency, this agency exists in every state to find parents that don’t have custody (called "noncustodial parents," or "NCPs") or to find the person assumed to be the father of a child (called a "putative father," or "PF"). This agency makes, enforces, and changes child support and also collects and gives out child support money.

CHILD SUPPORT GUIDELINES: In family law, a standard method for figuring out child support payments based on the income of the parent(s) and other factors according to state law. The Federal Family Support Act of 1988 says states must use guidelines to calculate support for each family unless there is a written court finding saying the guidelines would be inappropriate for that case.

CLERK OF COURT: A person chosen by the judges to help manage cases, keep court records, deal with financial matters, and give other administrative support.

CODES: The law created by statutes. For example, the California Family Code, California Code of Civil Procedure, California Civil Code, California Vehicle Code, California Penal Code, and California Health and Safety Code.

COMMISSIONER: A commissioner is selected by the judges of the court to assist them with the handling of the court’s caseload. They have many of the same responsibilities as judges. A litigant must agree to the Commissioner hearing their case because the California Constitution gives every citizen the right to have a Judge decide their case.

COMMUNITY OBLIGATIONS: Community obligations are the debts that a husband and wife or registered domestic partners owe together. In most cases that includes anything that you still owe on any debts either of you took on during the time you were living together as husband and wife or as registered domestic partners. (If you bought furniture on credit while you were married or in a registered domestic partnership and living together, the unpaid balance is a part of your community obligations.)

COMMUNITY PROPERTY: Community property is everything that a husband and wife or registered domestic partners own together. Generally, all property that is acquired during marriage is community property and is divided equally by the parties. The most common exception to this rule is that property acquired during marriage through gift, bequest or devise is the separate property of the spouse who acquired the property. In most cases community property includes:

(1) Money or benefits like pensions and stock options that you now have which either of you earned during the time you were living together as husband and wife or as registered domestic partners; and

(2) Anything either of you bought with money earned during that period.

CONTEMPT OF COURT: To defy a court’s authority. If one is found or held in contempt of court, he or she may be fined, placed in jail, or both.

CONTINUING EXCLUSIVE JURISDICTION: Theory that only one support order should be valid between the same people at a time and when a court hears a child support case, it can add to and change that order. The court of continuing exclusive jurisdiction (CCEJ) has control over a support case until another court takes it away. This is defined in the Uniform Interstate Family Support Act (UIFSA).

COURT: A judge or body of judges whose task is to hear cases and administer justice.

Trial Courts

Before June 1998, California's trial courts consisted of superior and municipal courts, each with its own jurisdiction and number of judges fixed by the Legislature. Superior courts now have trial jurisdiction over all felony cases and all general civil cases. Nearly 8.8 million cases were filed in the trial courts at some 400 court locations throughout the state during 1998-1999.

The Courts of Appeal

The Courts of Appeal were established by an amendment to the California Constitution in 1904. They are California's intermediate courts of review, between the trial courts and the Supreme Court. California has six appellate districts, each one having at least one division. The six appellate districts have 19 divisions and a total of 105 justices who preside in those courts.

The Courts of Appeal have the authority to hear appeals from the trial courts throughout the state. An example: when a verdict or judgment is reached in a trial and the losing party in the case wants to appeal the decision, the case goes to the Court of Appeal for review. Cases on appeal are decided by three-judge panels. The decisions of the panels are called opinions, and sometimes those opinions are published in a legal newspaper, so that lawyers throughout the state can read them and perhaps use them to argue their own cases.

Each division of the Courts of Appeal has a presiding justice and two or more associate justices, appointed by the Governor and confirmed by the Commission on Judicial appointments. The same rules, which govern the selection of Supreme Court justices, also apply to the justices who serve on the California Courts of Appeal.

State Supreme Court

Supreme Court: The state's highest court. The Supreme Court may grant review of cases decided by the Courts of Appeal. Certain other cases, such as death penalty appeals and disciplinary cases involving judges and attorneys, are appealed directly to this court. At least four of the seven justices must agree on decisions. The court's decisions are binding on all other state courts.

COURT ORDER: A legally binding edict issued by a court of law. Can be issued by a magistrate, judge, commissioner or properly empowered administrative officer.

COURT REPORTER: A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand, or an audio recording device, and then produces a transcript of the proceedings upon request.

COURT TRIAL: A trial without a jury in which a judicial officer determines both the issues of fact and the law in the case. All family law proceedings are determined through Court Trial.

CROSS EXAMINATION: The testimony a witness gives when the other side’s lawyer is asking the questions at a trial, hearing, or deposition.

CUSTODIAL PARENT: The parent that has primary care, custody, and control of the child(ren).

CUSTODY

• Legal Custody: The rights and responsibilities of parents to make decisions relating to the health, education and welfare of their children.

• Joint Legal Custody: Both parents share in the right and responsibility to make decisions relating to the health, education and welfare of a child.

• Sole Legal Custody: One parent has the right and responsibility to make decisions relating to the health, education and welfare of a child.

• Physical Custody: How much time the children spend with each parent; where the children live; how day-to-day responsibilities are fulfilled.

• Joint Physical Custody: Children spend a significant amount of time with each parent.

• Sole Physical Custody: Children reside primarily with one parent and have visitation with the other parent.

• Joint Custody: This term means both joint legal and joint physical custody. Parents agree to share it all.

• Visitation: Times when one parent has the children and is fully responsible for them.

DEBTOR: A person or business that owes a debt (usually money).

DECLARATION: A sworn, written statement that is used as evidence in court. The statement supports or establishes a fact. The person that makes the declaration certifies or declares under penalty of perjury that the statement is true and correct. The person that makes the declaration is called the "declarant." The declarant must sign and date the declaration. The declaration must also say where the declaration was signed or that it was made under the laws of the State of California.

DEFAULT: When a defendant in a civil case doesn’t file an answer or go to court when they’re supposed to, but was properly notified. This is called being "in default."

DEFAULT JUDGMENT: A court decision in favor of the plaintiff when the defendant doesn’t answer or go to court when they’re supposed to.

DEPENDENT: In family law, this usually means a child that is financially supported by another person. In juvenile law, this means a minor that is in the custody of the court because he or she was abused, neglected, or molested or is physically dangerous to the public because of a mental or physical disorder

DEPOSITION: Written or oral testimony given under oath in front of an authorized third person like a court reporter. Depositions take place outside of court. They allow the parties to get a record of a person’s testimony, or to get testimony from a witness that lives far away. They can help the lawyers prepare their court papers called "pleadings."

DICTUM: A part of a written court case opinion that is related to the case, but not needed to decide it. Can’t be used as precedent in future cases.

DIRECT EXAMINATION: When a witness testifies and answers questions posed by the party that asked them to testify.

DIRECT INCOME WITHOLDING: A procedure that orders an employer in another state to withhold support from an employee’s paycheck without having to go through the IV-D agency or court system in that state. With this order, withholding can start right away, unless the obligor doesn’t agree, and no court pleadings are required.

DISCOVERY: The gathering of information (facts, documents, or testimony) before a case goes to trial. Each party in a divorce or family law proceedings has the opportunity to ask questions of the other spouse who is required to give responses to the questions under penalty of perjury. The questions may be asked informally in a letter; by sending written questions called interrogatories or requests for admission; or in person at a deposition. Each spouse also has the opportunity to request that the other spouse provide a list of documents relating to issues being litigated in the divorce. These documents often include tax returns, general ledgers, profit and loss statements, paycheck stubs, W-2 forms, bank statements, financial statements and other similar documents. The documents are reviewed to create a community property balance sheet; determine cash flow available for payment of child and/or spousal support; to develop trial exhibits and questions; and for many other purposes.

DISQUALIFICATION: When a judge decides (usually voluntarily) not to hear a case. In most cases, this decision has to do with an outside interest of the judge’s that may influence his or her ability to decide the case in a fair and impartial way.

DISSOLUTION: A marriage that is ended by a judge’s decision, also known as a "divorce."

DUE PROCESS: The regular way that the law is administered through the courts. The U.S. Constitution says that everyone has to have a day in court, has the right to be represented by a lawyer, and the right to benefit from court procedures that are speedy, fair, and impartial.

EARNINGS ASSIGNMENT: A way for an employee to transfer (or "assign") portions of his or her future paychecks to pay a debt, like child support.

EARNING ASSIGNMENT ORDER: Court order delivered ("served") by a levying officer or registered process server that directs a judgment debtor’s employer to withhold the earnings of the judgment debtor for the purpose of wage garnishment.

EMANCIPATION: A legal way for children to become adults before they're 18. Once a child is emancipated, his or her parents don't have custody or control of him or her anymore. If you are emancipated, you can do some things without your parent's permission, like: Get medical care; Apply for a work permit; Sign up for school or college; and live where you want to.

EQUITABLE: (1) Describes civil suits in "equity" instead of in "law." In the legal history of England, courts of "law" could order only the payment of damages. But courts of "equity" could order someone to do something or to stop doing something. In American law, courts have power both in law and in equity. But usually, there can be trial by jury in "law" cases but not in "equity" cases. (2) To deal fairly and equally with all concerned. This implies not only a fair or just decision based on the law, but also a judgment guided by common-sense ideas of fairness and justice.

ESTOPPEL: An act or statement that prevents a person from later making claims to the contrary.

EVIDENCE: Proof in the form of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court.

EXHIBIT: An item of physical / tangible evidence which is to be or has been offered to the court for inspection.

EX-PARTE APPLICATION: Due process requires that requests of a party be heard on noticed motion so that the other party may have the opportunity to review the requests and submit evidence and citation to legal authority in opposition to the requests. Motions are, therefore, typically heard by the Court approximately three weeks after they are filed with the Court. Ex-parte applications are an exception to the due process requirement and allow a court to make temporary orders where there exists exigent circumstances and where irreparable harm would occur if the requests were not heard immediately. In some circumstances, ex-parte applications may be heard by the Court without any notice to the other party, however the general requirement is that notice be given by 10:00 a.m. the day prior to the ex-parte hearing.

GARNISHMENT: A legal process that allows part of a person's wages and/or assets to be withheld for payment of a debt. Wage or income garnishment is usually involuntary.

GENETIC TESTING: A medical test to determine legal fatherhood (or "paternity").

GOOD CAUSE: A good reason. For example, a party must have good cause (better than not having a car or not being able to find a baby-sitter) for not attending a court hearing.

GUARDIAN AD-LITEM: A court-appointed adult that represents a minor child or legally incompetent person.

GUARDIANSHIP: In California, a court proceeding where a judge appoints someone to care for a person under age 18 or to manage the minor's estate (property), or both.

HEARING: A formal court proceeding with the judge and opposing sides present, but no jury.

HEARSAY: Statements by a witness that did not see or hear the incident in question but heard about it from someone else. Hearsay usually can't be used as evidence in court.

IMPEACHMENT: (1) The process of calling a witness's testimony into question. For example, if an attorney can show that a witness may have made up parts of his or her testimony, the witness is said to be "impeached."

INCOME: Any form of periodic payment to a person, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, pension or retirement program payments, and interest.

INCOME WITHHOLDING: When automatic deductions are made from wages or income to pay a debt like child support. Income withholding is often part of a child support order. It can be voluntary or involuntary.

INDEMNITY: An obligation to provide compensation (usually money) for a loss, injury, or damage.

IN LIMINE: Latin for "at the beginning" or "at the threshold," such as a motion in limine at the beginning of trial to ask that certain evidence be excluded.

IN PROPRIA PERSONA (in pro per): When a person represents himself or herself without a lawyer. This comes from the Latin for "in one's own proper person."

INTERROGATORIES: Written questions sent by 1 side in a lawsuit to an opposing side as part of pretrial discovery in civil cases. The side that receives the interrogatories must answer them in writing under oath.

INTERSTATE CASES: In child support, cases where the dependent child and the parent that owes support live in different states, or where 2 or more states are involved in some case activity, like enforcement.

ISSUE: (1) The disputed point between parties in a lawsuit; (2) to send out officially, as when a court issues an order.

IV-A ("4-A") CASE: A child support case where a custodial parent and child(ren) get public assistance benefits under the state's IV-A program, which is funded under title IV-A of the Social Security Act. Applicants for IV-A assistance are automatically referred to their state IV-D agency in order to identify and locate the noncustodial parent, establish paternity and/or a child support order, and/or obtain child support payments. This lets the state get back some or all of its public assistance money from the noncustodial parent.

IV-D ("4-D"): Refers to title IV-D of the Social Security Act, which says that each state must create a program to find noncustodial parents, establish paternity, establish and enforce child support obligations, and collect and distribute support payments. Any person that gets public assistance (usually TANF) is referred to the state IV-D child support program. States must also accept applications from families that do not get public assistance, if requested, to help collect child support.

JOINDER: Generally, a bringing or joining together. For example, plaintiffs joining in a suit, or a joining of actions or defense.

JUDGE: A judge oversees everything in the courtroom. A judge must see that all cases assigned to his or her courtroom are handled in a timely manner. In every case, the judge must be impartial or fair to all parties (the petitioner and respondent) involved in the case. If a judge thinks there is any reason that the parties may question the judge’s ability to be fair, the parties and judge must discuss this prior to the start of trial. If there is any reason that a judge might not be able to be impartial, such as the judge is a friend of a person involved in a case, the judge must withdraw from the case. This is called a recusal.

When a case is set for a hearing or for trial, it is the responsibility of the judge to:

• Set the time for the hearing or trial

• Keep order in the courtroom

• Permit presentation of evidence through testimony of witnesses or the introduction of exhibits

• Make a ruling on a motion

Qualifications Needed To Become a Judge

There are two ways to become a judge in California:

• To be appointed by the Governor

In order to become a judge, a lawyer must be a member of the State Bar of California and have practiced law for at least 10 years

In order to seek appointment from the Governor, a lawyer must fill out an application, and usually provide letters of support from friends, including lawyers, judges, law school professors, and others who know the candidate’s qualifications. The application is reviewed by the Governor’s staff, and if they feel that the applicant is qualified, the State Bar of California Commission on Judicial Nominees Evaluation is asked to review the candidate’s application. The commission solicits additional information and recommendations from other lawyers and judges who are familiar with the applicant. If the applicant receives a high rating, the Governor’s staff will submit the application to the Governor, who will then decide whether to grant the appointment. The Governor will appoint a new judge when there is a vacancy at a particular court.
A lawyer may also seek a judicial position by running for election. The lawyer may run against a current judge or run for an open position on a court’s bench. Candidates for judicial election are usually evaluated by a committee of the local bar association, who will rate the candidate(s) and inform the voters before the election.

The term of office for a trial judge in California is six years.

JUDGMENT: (1) The official decision of a court that resolves the dispute between the parties to a lawsuit; (2) the official decision or finding of a judge or administrative agency hearing officer about the respective rights and claims of the parties to an action; also known as a "decree" or "order," and may include "findings of fact and conclusions of law"; (3) the final decision of the judge stating which party has won the case and the terms of the decision. Can be "n.o.v.," which means a ruling in favor of 1 party even though there had been a verdict for the other party, or "summary," which means a court's decision before a trial saying that no facts are disputed in the case and that 1 party is entitled to judgment as a matter of law.

JUDGMENT CREDITOR: The party in whose favor a judgment has been awarded.

JUDGMENT DEBTOR: The party that the judgment has been entered against.

JURISDICTION: (1) The legal authority of a court to hear and decide a case; (2) the geographic area over which the court has authority to decide cases; (3) the territory, subject matter, or persons over which lawful authority may be exercised by a court.

JUVENILE: A person younger than the legal age of adulthood, which usually is 18 years but in some cases is 21 years.

JUVENILE COURT: That part of the superior court that handles delinquency, status offense, and dependency cases involving minors

LACHES: Excessive lapse of time in enforcing a right that can be enforced by legal action; negligence in failing to act more promptly.

LEGAL SEPARATION: Legal separation is available to parties who want to be legally separated from their spouse, but for religious or other reasons want to remain married. Instead of filing a Petition For Dissolution of Marriage, a party will file a Petition For Legal Separation. In the action for legal separation, most of the remedies available in a dissolution of marriage proceeding are also available in the legal separation proceeding, including property division, child support, spousal support and attorney's fee awards.

LIEN: A claim on property to prevent the sale or transfer of that property until a debt is paid. The lien may be enforced or collected by levying on the property.

LIS PENDENS: Jurisdiction of a court over property until final decision of a case; from the Latin for "a pending suit."

MARITAL SETTLEMENT AGREEMENT: In a dissolution of marriage, legal separation, or annulment, a stipulated judgment will often include a marital settlement agreement (MSA). A marital settlement agreement is a written contract between you and your spouse that contains detailed legal wording about how the issues in your case will be handled. It is usually used when there are complicated issues of property, debt, support, or custody that need to be set out in the judgment.

MEDIATION: A process in which a neutral person or persons facilitate communication between disputants to assist them in reaching a mutually acceptable settlement.

MINOR: A person under the age of 18 years.

MINUTE ORDER: The courtroom clerk's written minutes of court proceedings. Copies of the minute orders are usually kept in the case files and the court clerk's office.

NON CUSTODIAL PARENT (NCP): The parent that does not have primary care, custody, or control of a child.

NOTICE: A written announcement or warning. For example, a notice to the other side that on a certain date a particular motion will be made in court.

NOTICE OF ENTRY OF JUDGMENT: A court form telling the parties about the judge's decision in a lawsuit.

NULLITY: The legal invalidation of a marriage; see annulment.

NUNC PRO TUNC: When a court order is issued on 1 date but is effective retroactively (as of a date that is in the past); from the Latin for "now for then."

OBJECTION: A formal protest made by a party over testimony or evidence that the other side tries to introduce.

OBLIGATION: Law or duty that requires parties to follow their agreement. An obligation or debt may be created by a judgment or contract, like child support.

OBLIGEE: The person, state agency, or institution owed a debt (usually money) like child support (also called "custodial party" if the money is owed to the person with primary custody of a child).

OBLIGOR: The person that must pay child support or perform some other financial obligation.

OPINION: A judge's written explanation of the decision of the court in appellate cases. Because a case may be heard by 3 or more judges in the appellate court, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, 1 judge will write the opinion for all. If all the judges do not agree, the formal decision will be based on the majority view, and 1 member of the majority will write the opinion. The judges that do not agree with the majority may write their own dissenting or concurring opinions to state their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers comment or clarification or a completely different reason for reaching the same result. Only the majority opinion can be used as binding precedent in future cases.

ORAL ARGUMENT: The part of a trial when lawyers summarize their position in court and also answer the judge's questions.

ORDER: (1) Decision of a judicial officer ; (2) a directive of the court, on a matter relating to the main proceedings, that decides a preliminary point or directs some steps in the proceedings.

ORDER TO SHOW CAUSE (OSC): An order to a person, on motion of the opposing party, to appear in court and explain why the court should not take a proposed action. If the person fails to appear or to give sufficient reasons why the court should take no action, the court will take the action.

PARENTAGE / PATERNITY: Parentage is more commonly known as paternity. A parentage action is filed where parents have had children without getting married. In a parentage action, the Court determines whether or not a party is the parent of a minor child. If parentage is established, child custody and visitation orders and child support orders may be made by the Court.

PARTNER SUPPORT: In family law, court-ordered support of a registered domestic partner or ex-partner.

PARTY: One of the litigants in a court case. At the trial level, the parties are typically called the "plaintiff" or "petitioner" and the "defendant" or "respondent." On appeal, parties are called the "appellant" and "appellee."

PASSPORT DENIAL PROGRAM: The names of obligors that owe $5,000 or more in child support are sent to the federal Office of Child Support Enforcement for tax refund offset and to the U.S. Department of State to indicate that a passport can't be issued for that person.

PAYEE: Person or organization in whose name child support or other money is paid.

PAYOR: Person that makes a payment.

PENDENTE LITE: Describes orders made during the actual progress of the lawsuit prior to final disposition; from the Latin for "during the suit."

PENDING: The status of a case that is not yet resolved by the court.

PERJURY: A false statement made on purpose while under oath in a court proceeding.

PERSONAL JURISDICTION: The power of a court over the person of a respondent.

PERSONAL SERVICE: Personal delivery of court papers by handing a copy to the person that is served.

PETITION: The first written application to a court requesting that judicial action be taken on a particular matter. In divorce cases, the initial pleading is a Petition For Dissolution of Marriage.

PETITIONER: A person that presents a petition to the court.

PLEADING: Written statement filed with the court that describes a party's legal or factual claims about the case and what the party wants from the court.

POINTS AND AUTHORITIES: Refers to the written legal argument given to support a motion. It includes references to past cases, statutes (codes), and other statements of law that emphasize the legality of the motion requested.

PRECEDENT: A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally "follow precedent," meaning that they use the principles established in earlier cases to decide new cases dealing with similar facts and legal issues. A judge will overlook precedent if a party can show that the earlier case was decided incorrectly or that it differed in some significant way from the current case.

PREMARITAL AGREEMENT: People who are contemplating marriage oftentimes sign a pre-marital agreement that sets forth each party's property rights and support obligations. These agreements can be crucial in protecting the assets or income of a party in the event that the contemplated marriage fails. Premarital agreements need to be prepared and signed with great care because of strict rules that have been adopted by California governing the enforceability of premarital agreements.

PREPONDERANCE OF EVIDENCE: The degree of proof which is more probable than not. Generally, the “weight” of the evidence presented by one side “outweighs” the evidence presented by the other.

PROCESS SERVER: A person that serves court papers on a party to a lawsuit.

PROOF: Evidence that tends to establish the existence or truth of a fact at issue in a case.

PROOF OF SERVICE: The form filed with the court that proves that court papers were formally served on (delivered to) a party in a court action on a certain date.

PRO TEM JUDGE: A lawyer that volunteers his or her time to hear and decide cases. Also called a "temporary judge."

PRO TEMPORE: A referee or commissioner that temporarily replaces a judge; same as pro tem judge; from the Latin for "for the time being" or "temporarily."

PUTATIVE FATHER: The person said to be the father of a child but who has not yet been medically or legally declared to be the legal father.

REGISTERD DOMESTIC PARTNERSHIP: Effective January 1, 2005, people in same sex relationships may register with the State of California as domestic partners. Becoming a registered domestic partner results in the parties having the same rights and obligations of married persons, including community property, spousal support and child support. The registered domestic partnership is dissolved in the same matter as a marriage is dissolved. However, there are several important differences between dissolution of a marriage and dissolution of a registered domestic partnership, which, primarily, involve the tax treatment of transfer of property or retirement benefits.

QUALIFIED MEDICAL CHILD SUPPORT ORDER (QMCSO): An order or judgment that provides for medical support for a child of a parent covered by a group health plan or provides for health benefit coverage for the child.

QUALIFIED DOMESTIC RELATIONS ORDER (QDRO): An order or judgment issued by a court and approved by a pension plan that divides a pension plan in order to make a fair division of property or to pay for child or spousal support.

QUASH: To make void; to vacate; to annul; to set aside. For example, to quash a subpoena.

REBUTTAL: Evidence presented at trial by 1 party in order to overcome evidence introduced by another party.

RECUSE: To excuse (oneself) or be excused from a criminal or civil proceeding because of conflict of interest. For example, a judge may recuse himself or herself from a case because of personal or professional involvement with 1 or more of the parties.

REFEREE: A person appointed by the court to hear and make decisions on limited legal matters, like juvenile or traffic offenses.

REMAND: When an appellate court sends a case to a lower court for further proceedings

REPORTER: A court official that records the proceedings in trials, including the questions asked of, and answers made by, witnesses.

REQUESTS FOR ADMISSION: A method of discovery in which 1 party formally and in writing asks the opposing party to admit the truth of certain facts relevant to a case.

RESPONDENT: The person against whom an appeal is made; the responding party in a dissolution, nullity, adoption, or probate case.

RESTRAINING ORDER: A court order that tells a person to stop doing something for a certain amount of time, usually until a court hearing is held.

REVERSE: When an appellate court sets aside the decision of a trial court. A reversal is often accompanied by a remand to the lower court for further proceedings.

SEPARATION DATE: The date of separation for divorces or registered domestic partnerships is when one spouse (or both) or one partner (or both) decides that the marriage or partnership is over and takes some actions to show this (like moving out of the house). Parties become separated when there is a complete and final break of the marital relationship. The Courts have set forth a variety of tests to determine separate date, including one case that found that parties must be living in separate residences to be separated. Determining the separation date has a significant impact upon property division and spousal support.

SEPARATE PROPERTY: Separate property is property that is acquired before marriage or after separation or property that is acquired during marriage through gift, bequest or devise. The other spouse generally has no interest in the separate property of a spouse. There are several exceptions to the rule of separate property. The most significant and most commonly litigated exception is businesses that are acquired before marriage but appreciate in value during marriage because of the energy, skill and time of a spouse. In these instances a community property interest develops in the business. A forensic accountant is typically needed to value the business and apportion the community and separate property interests.

SERVICE OF PROCESS: The delivery of legal papers to the opposing party. The papers must be delivered by an adult aged 18 or older that is not involved in the case and that swears to the date and method of delivery to the recipient.
SETTLEMENT: An agreement reached among the parties that resolves the case at any time before a judge's decision in the case.

SETTLEMENT AGREEMENT: In a dissolution, legal separation, or annulment of marriage or domestic partnership, a stipulated judgment will often include a settlement agreement. A settlement agreement is a written contract between you and your spouse or domestic partner that contains detailed legal wording about how the issues in your case will be handled. It is usually used when there are complicated issues of property, debt, support, or custody that need to be set out in the judgment.

SPOUSAL SUPPORT / ALIMONY: Spousal support is the obligation of a spouse to provide financial support to the other spouse. There are two types of spousal support: temporary or pendente lite spousal support and permanent spousal support. The purpose of temporary spousal support is to maintain the status quo until Trial and is typically determined by reference to each party's incomes. Permanent spousal support is determined by balancing several different factors, including the standard of living enjoyed during the marriage, each party's income, the length of the marriage and the ability of the obligee spouse to be self-supporting. The length of a spousal support obligation is determined by reference to the length of the marriage. The public policy of the state is for a spouse to be self-supporting within half the length of the marriage, however where a marriage is longer than 10 years, spousal support may continue for life.

STATE PARENT LOCATOR SERVICE (SPLS): A unit within each state's child support enforcement agency that locates noncustodial parents to establish and enforce child support obligations, visitation, and custody orders or to establish paternity.

STIPULATION: A voluntary agreement between opposing parties and / or their attorneys.

STIPULATED JUDGMENT: An agreement between the parties to a case that settles a case. For example, if you and your spouse agree on all the matters about your divorce, you can submit a stipulated judgment to the court. The stipulated judgment must be signed by both you and your spouse, and will list your agreements about the division of property and debts, child and spousal support and child custody and visitation. Once the stipulated judgment is signed by the judge, it becomes the judgment in your case.

SUA SPONTE: Commonly used to describe when a judge does something without being asked to by either party in a case; from the Latin for "of one's own will."

SUBPOENA: An official order to go to court at a stated time. Subpoenas are commonly used to tell witnesses to come to court to testify in a trial.

SUBPOENA DUCES TECUM: An official court order to bring documents or records to a stated place at a stated time.

SUMMONS: A notice to a defendant or respondent that an action against him or her was filed in the court issuing the summons and that a judgment will be taken against him or her if the defendant or respondent doesn't answer the complaint or petition within a certain time.

SUPERIOR COURT: The trial court in each county of the State of California. This court hears all adoption, family law, juvenile, criminal, civil, small claims, and probate cases.

SUPPORT ORDER: A court order for the support of a child, spouse or domestic partner. A support order can include monetary support; health care; payment of debts; or repayment of court costs and attorney fees, interest, and penalties; and other kinds of support.

TEMPORARY ASSISTANCE TO NEEDY FAMILIES (TANF): Time-limited public assistance payments made to poor families, based on title IV-A of the Social Security Act. TANF replaced Aid to Families With Dependent Children (AFDC, also called "welfare") in 1996.

TEMPORARY JUDGE: An attorney that volunteers his or her time to hear and decide cases. Also called a "pro tem judge."

TEMPORARY RESTRAINING ORDER: A court order, sometimes called a "TRO," that says a person must not do certain things that are likely to cause harm that can't be fixed. Unlike an injunction, it can be granted immediately, without notice to the opposing party and without a hearing. It is intended to last only until a hearing can be held. TROs are often used in domestic violence cases to protect a person from violence or the threat of violence.

TESTIMONY: Evidence presented orally by witnesses during trials, before grand juries, or during administrative proceedings.

TRANSCRIPT: A written, word-for-word record of what was said at a trial or some other formal conversation like a hearing or deposition.

TRIAL: A court process in which the issues of fact and law are heard and decided according to legal procedures so a judicial officer can make a decision in the case.

TRIAL COURT: The first court to consider a case, generally the superior court.

UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA): Uniform state laws that provide mechanisms for establishing and enforcing child support obligations in interstate cases (when a noncustodial parent lives in a different state than his or her child and the custodial parent).

VACATE THE DEFAULT JUDGMENT: Getting a default judgment removed or erased.

VERIFICATION: An oral or written statement, usually made under oath, saying that something is true.

VIOLATION: A breach of a right, duty, or law.

VISITATION: A parent who does not have physical custody is usually given reasonable visitation time with the children, unless there is some reason it would be detrimental to them.

WAGE ASSIGNMENT: A voluntary agreement by an employee to transfer (or assign) parts of future wage payments to pay a debt, like child support.

WAGE ATTACHMENT: An involuntary transfer of a portion of an employee's wage payment to repay a debt. (See also income withholding, wage withholding.)

WAGE GARNISHMENT: A legal procedure that requires the employer of a judgment debtor to withhold a portion of the judgment debtor's wages to satisfy a judgment.

WAGE WITHOLDING: A legal procedure that allows deductions to be made from wages or income on a regular schedule. The deductions are used to pay a debt, like child support. Wage withholding often is incorporated into a child support order. It can be voluntary or involuntary. Also known as "income withholding." (See also direct income withholding, earnings assignment, income withholding.)

WAIVER: The intentional or voluntary relinquishment of a known right.

WITNESS: A person who has knowledge of facts having to do with a case being tried and who gives testimony.

WRIT: A written court order saying that certain action must be taken. Can be a writ of: (1) attachment—an order to attach specified property; (2) certiorari—an order by an appellate court granting or denying a review of judgment; (3) execution—an order to enforce a court judgment; (4) habeas corpus—an order to release someone that has been unlawfully imprisoned; (5) mandamus (or mandate)—an order to perform any act designated by law to be part of a person's duty or status; or (6) prohibition—the opposite of a writ of mandate that orders that further proceedings or other official acts be stopped (usually issued from a higher to a lower court).

WRIT OF EXECUTION: An order issued by a court requiring the performance of a specified act, or giving authority to have it done. It is used to allow the levying officer the power to take the judgment debtor's property.

For a consultation with The Law Offices of Burch, Coulston & Buncher, L.L.P., call 949.202.5728 or 866.909.6059 or contact us online.