Divorce law terms you need to know

Have you ever felt like your lawyer is speaking in an alien language whenever they explain something to you? I promise you were aren’t. But don’t worry you aren’t alone in thinking this. Every industry has its own language. Divorce law is no different.

My main end goal for all my clients is for them to understand what happened to them in their case so that they can live their best post divorce life. But, in order to accomplish that, I need them to understand what is happening along the way. Because of this, I start using these basic divorce law terms right away, usually in our first meeting. By the end of their case my clients are usually speaking and comprehending this new language fluently.

However, just like Spanish or French, learning this new language takes studying and practice. So in this post I’m going to explain the basic divorce law terms that I use everyday and I bet your lawyer or the judge is using them too. These are the words that you need to know if you are going to become fluent in the language of divorce law. Think of me as your personal Rosetta Stone.

Basic law terms that you need to know for any legal case.

Plaintiff

The plaintiff is the person who initiates the start of the case. For example, the person who files the divorce complaint is the plaintiff. They have an obligation to keep the case moving in the courts.

Defendant

The defendant is the person who has the case started against them. A divorce is a civil lawsuit. Therefore, the plaintiff is actually suing the defendant for a divorce, similar to suing another driver for damages in a car accident. Because of this, a lot of clients worry that being the defendant puts them in a bad position strategically.

However, family law matters are different than automobile lawsuits. In divorce cases, the plaintiff and defendant are seen as being of equal status rather than one being the victim and the other being the offender. Sometimes, it’s actually better to be the defendant. For example, the plaintiff has to pay a fee to the court to file the divorce complaint. The defendant doesn’t.

Pro Se/ Unrepresented party/Self-represented litigant

These terms are used interchangeably to mean a party that is not represented by counsel and is choosing to represent himself/herself.

Complaint

The document filed to initiate the divorce action. Each jurisdiction requires certain language to be in the complaint in order to issue a divorce decree. In addition to asking for a divorce, the plaintiff may also include a count (i.e. a request) for support and property division. The circumstances of the case determine what counts are included in the divorce complaint.

Answer

After receiving the divorce complaint, the defendant will file an answer to the complaint. In that answer, the defendant will agree with or deny the claims made in the divorce complaint. The defendant can also include counterclaims, i.e. requests for alimony and property division. Again, the facts of your matter will dictate the counts that are included.

Service

We’ve all seen the scene in a tv show where someone is handed an envelope and the person says “you’ve been served.” You can picture it, right?

The term “Service” is a legal term of art. When a complaint is filed, the defendant needs to be given a copy of it. The way in which the defendant is correctly provided with a copy is dictated by the state’s rules.

For example, emailing the defendant is usually not considered proper service. Having someone “serve” him/her like in my movie example would be correct. Other appropriate methods of service include sending it to the parties via certified mail or sending it to their attorney.

Petition/Motion

Some courts use the terms petition and motion interchangeably. These are documents that can be filed by either the plaintiff or a defendant to ask the court to do something in their family law matter. For example, a party can file a petition to modify Support to change the amount he/she is receiving in child support. A party could also file a motion to compel the other party to provide certain financial documents to value the marital estate.

Order

An order is a decision that a judge makes in your case. Generally an order is put in writing or memorialized in a transcript. Sometimes that order is simply approving a parties’ agreement. Other times, an order is the court’s decision after one party has filed a petition and a hearing has been held.

Contempt

A party is in contempt when they are in violation of a court order, like a custody agreement. When a party is found to be in contempt, the court may order the party to do something, such as sign a specific document or pay the other party certain monies. The court may also order the offending party to reimburse the other for the counsel fees incurred as a result of the offending party’s misdeeds.

Conference

A conference is an informal meeting with attorneys and the decision maker (i.e. the judge or a master) to discuss an issue in a case. Sometimes clients attend these and sometimes they don’t. Generally, orders are not issued after conferences unless they are by agreement. This is because testimony is not taken at conferences. Generally, judges will not enter orders without having a formal hearing.

Hearing

This is a proceeding involving the parties, their lawyers and a decision maker such as a judge. At a hearing, the parties and their witnesses provide testimony as well as written evidence to support their claims and requested outcome. Thereafter, the decision maker will evaluate the information presented and enter an order resolving the claims.

Basic divorce law terms that you need to know for any divorce case.

Date of separation

The date when the parties decide they no longer want to be a married couple and want to divorce. For more information, read my post about why knowing whether you are actually separated from your spouse is critical for your case.

Date of marriage

This is the date when you got married. This is not the date that you obtained your marriage license. The length of your marriage can effect an alimony award and/or what percentage each spouse will receive of the marital estate.

Discovery

This is the formal process of obtaining financial and other relevant information from the other party. This can include written responses to questions or exchanging certain financial documents such as bank statements and tax returns. When a party refuses to provide the requested documents then an attorney can go to the judge, explain what is needed, and ask that they be ordered to provide them. Clients can waste a lot of money in legal fees fighting over the production of this information.

Divorce Decree

The order signed by a judge stating that the parties are divorced from the bonds of matrimony. This is an important document that should be kept in a secure place such as a safe deposit box. Divorce decrees are often needed when a party wants to remarry, change their last name on certain documents, or remove their spouse as a beneficiary on their life insurance policy.

The Basic Divorce law terms that you need to know about how to divide up your marital estate.

Property Division

The marital estate includes both assets and debts. This is the division of that estate between the parties. How the estate is divided (both in terms of percentages and who gets to keep what specific assets) is unique to each case.

Pre-marital property

These are assets owned by either party prior to the marriage. They are not considered part of the marital estate and therefore not part of the property division. However, sometimes the increase in value of these assets can be included in your property distribution. That can be excluded by a prenuptial agreement.

Marital property

Did you think that if an account is in your name alone it is just yours and not part of your marital estate? Shaking your head yes?? Sorry, but nope. Marital property is defined as assets (and debts) owned or acquired during the parties’ marriage. This is regardless of how the asset or liability is titled.

I can not tell you how many cases I have had that a party has told me that an asset was “theirs” and not part of the marital estate simply because the other person’s name was not on the account. Fortunately (or unfortunately) title does not matter when defining marital property. For example, if a party opens a bank account during the marriage but it is titled in that person’s name alone, it is still a marital asset and subject to division.

Non-marital/Separate Property

These are assets (and debts) that are not considered marital property and therefore not to be divided between the parties. This property generally fits into two categories. The first is property purchased by a party after the date of separation with non-marital funds. The second is property exempted from being considered marital property under the law. The most common exempted property are gifts and inheritances from a third person to one of the parties.

Property Settlement Agreement

This is an agreement signed by the parties. In this agreement, they decide how they want their marital assets and debts to be distributed. This document is a binding contract between the parties which can be enforced in the court system should one party violate its terms. In some states, you must finalize your property distribution before you can get divorced. However, other states complete the divorce first before determining the division of the marital estate.

Prenuptial Agreement

An agreement entered into prior to a marriage in which the couple decides how they want to divide their assets and liabilities if they get divorced. This agreement is only valid if the parties get married. Spoiler alert: Prenups aren’t just for rich people!!! Read about why I think prenuptial agreements are important for everyone.

Postnuptial Agreement

This is an agreement signed by a couple after their marriage in which they set forth how they want to distribute certain property. Sometimes these agreements are signed because the parties did not have enough time to draft and execute a prenuptial agreement before a wedding. Other times they are signed when the parties’ marriage is in trouble but neither want to seek divorce. In those cases, the parties want to protect themselves financially if the union doesn’t ultimately survive.

Basic divorce law terms that you need to know for your support case.

Alimony Pendente Lite (temporary alimony/APL):

APL is monies paid by the spouse who makes more money to the spouse who makes less money. These monies are available from the filing of a divorce complaint until the entry of a divorce decree. Why does the court award spouses APL?

The purpose of these monies is to keep the receiving party “in the game” by providing them with support while the divorce is pending and before they can get their ultimate financial distribution from the marital estate. In Pennsylvania, APL is based on a mathematical formula which does not consider the financial needs of either party.

Spousal Support

Spousal support is similar to APL. However, a party can request spousal support when the parties are separated but a divorce complaint has not yet been filed. Also, the court will look at the reasonable needs of the requesting party to determine the appropriate monthly award.

Alimony

Alimony is monies received by a party after the divorce decree has been entered. The amount and duration of alimony is very case specific. The award is heavily dependent on the length of the marriage, the income of the payor, and the assets in the case.

Similar to spousal support, the court will look at the reasonable needs of the requesting party when determining the appropriate award. The court will examine the lifestyles of the parties during the marriage and their present financial situation when determining a party’s reasonable needs.

Don’t forget this!

Some jurisdictions may use slightly different divorce law terms that are not covered here. If you have a question about a divorce law term I didn’t discuss, please feel free to leave me a comment and I’ll do my best to answer your question! As always, consult a local attorney should you have any questions about how any of these divorce law terms relate to your case.

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