Legal Terms Commonly Used in Family Law Cases
In working with your Family Law attorney, it is important that you become familiar with the legal terms that may be used in your case. Below is a listing of commonly used legal terms that your attorney may use. This is not intended to be a substitute for the advice of your attorney. Each case is unique and an experienced attorney will be able to explain these terms in more detail and help you understand them within the individual facts of your particular case.
An order signed by the Judge allowing the bonds of matrimony to be broken. Once an order is entered allowing an absolute divorce, neither party may file claims for equitable distribution or alimony. Any valid claims for equitable distribution or alimony that are made prior to the entry of the order for absolute divorce remain viable.
Accustomed Standard of Living:
The standard of living enjoyed by the parties during their marriage, particularly within the last three to five years. Often used in alimony trials to determine an appropriate amount of alimony.
Adultery is the act of sexual intercourse between a married person and an unmarried person of the opposite sex. See also, illicit sexual behavior.
A statement made by oath or affirmation stating matters about which the affiant has personal knowledge. Except in very limited instances or agreement of the parties, an affidavit cannot be used in place of testimony in court.
Alienation of Affections:
A legal action brought by one spouse against a third party, for the third party’s interference with the other spouse resulting in a deterioration of the Plaintiff’s marriage.
Monetary support provided to a spouse who either has been substantially reliant upon the other spouse financially, or who will be substantially reliant upon the other spouse as a result of the separation.
A legal action brought to end a void or voidable marriage. Only certain types of marriages may be annulled and the reasons are very few including incest, bigamy, a marriage in which one of the parties is physically impotent, or a marriage in which one or both parties lacked the will or understanding to contract (incompetent).
In an arbitration, the parties select a knowledgeable third party, usually an attorney, to act as a private judge in their dispute. The arbitrator hears witnesses, reviews evidence, and acts as the final decision maker about the issues. The parties are responsible for the arbitrator’s fees and are bound by the arbitrator’s decision.
Intentional action taken by a party in order to avoid an obligation. In family law matters, it is frequently mentioned in child support and alimony cases where one spouse is thought to be intentionally decreasing his or her income.
Best Interest of the Minor Child(ren):
In child custody matters, what arrangement would be the most stable, loving, and nurturing and what would provide the best opportunities for the child(ren). Often this involves a custody arrangement where both parents spend time with the minor child(ren).
A court required form that is used to request a particular date for a court hearing.
A determination of how the parents will divide their parenting responsibilities.
Legal Custody refers to how the major decisions affecting the child(ren) such as choice of religion, schooling, and major health issues will be made.
Physical Custody refers to where the child(ren) will live. Physical custody is frequently divided with one parent having primary custody and the other parent having visitation or with the parents having equal time with the child(ren).
Joint Legal Custody allows the parents to make joint decisions regarding the major issues affecting the child(ren).
Joint Physical Custody is where each parent has custodial time with the child(ren) during the year, but one parent may have less than 123 overnights with the child(ren).
Shared Custody: A form of joint physical custody wherein each parent has at least 123 overnights with the child(ren) and assumes financial responsibility for the child(ren) when the child(ren) is/are with that parent.
Both parents are required to provide financial support for the minor child(ren). Child support is determined using the North Carolina Child Support Guidelines. The guidelines use a formula to compute the amount of child support owed and takes into account the income of each parent, the physical custody arrangement, the health insurance and child care costs incurred by each parent and any extraordinary costs incurred.
Civil No-Contact Order:
Civil No Contact Order, also known as a “50C”, is a civil action, similar to a 50B, but between persons who have no personal ongoing relationship. A person must show the court that he or she has been stalked or otherwise harassed on more than one occasion with the intent to be placed in reasonable fear for his/her safety or to suffer substantial emotional distress. See Also: “Domestic Violence” and “DVPO”
A legal action brought by one spouse against a third party, because the third party had sexual intercourse with the other spouse during the spouses’ marriage.
Common Law Marriage:
In a few states, if two persons live together for a significant period of time and hold themselves out as a married couple, the state will recognize them as a married couple. North Carolina does not allow common law marriage, but will recognize a valid common law marriage from another state which allows common law marriage.
Community Property is a type of common ownership and a way of holding title to property after marriage. This property will be divided equally upon divorce or dissolution of marriage. North Carolina is an equitable distribution state, which means that the marital property and debts are to be divided equitably between the parties. Typically this means a 50/50 division; however, the court may determine that an unequal division in favor of one spouse is more equitable.
An order entered into voluntarily and with the consent of both parties. The order is then signed by the judge and is enforceable as an order of the court and is subject to the contempt powers of the court if a party fails to comply with the order.
Custody: See “Child Custody”
A psychological evaluation of a parent or both parents and the minor children to determine parenting strengths and weaknesses and the benefits or detriments of the placement of the children with either parent. Generally, the costs of such an evaluation are shared.
The person against whom a claim or action is brought in court. In some matters this person can be referred to as the Respondent.
A discovery tool used by attorneys to gather information about the facts of a case by asking questions of a person in an out of court location and obtaining his or her sworn testimony. A court reporter records the questions asked and the answers given so that a verbatim written transcript of the deposition may be prepared. Depositions may also be videotaped.
Statutorily allowed methods of obtaining information about a case, typically from the opposing party. Such methods include depositions, interrogatories, requests for admissions, and requests for production of documents, as well as other methods.
Dissolution of Marriage:
A term used by several states instead of using the term “divorce”. This term does not apply in North Carolina as North Carolina allows a spouse to file a claim for divorce.
A list of different statutory factors which may cause the court to order an unequal distribution of marital property as more equitable than an equal distribution.
Any increases, decreases, or passive income on marital property which is acquired after separation and before distribution or any income received after separation but earned prior thereto.
Divorce: See “Absolute Divorce”
Divorce from Bed and Board:
An action brought to obtain a judicial separation. The party bringing the action must show fault done to them by their spouse such as indignities rendered so as to make his or her condition intolerable and life burdensome, abuse of alcohol or drugs, adultery, and abandonment. ***An action for divorce from bed and board does not have to be brought in order for the parties to separate. See “Separation”
An act by one party to a relationship against the other party or a member of their household, usually involving violence or the threat of violence which actually causes bodily injury or places the party or member of their household in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress, or committing a sexual offense against the other party, such as rape.
Domestic Violence Protective Order:
Also referred to as a “DVPO”. An order entered by the court prohibiting a party from having any direct or indirect contact with the aggrieved party. Indirect contact includes having third parties contact the aggrieved party on behalf of the prohibited party. Ex-parte DVPO is generally in effect for 10 days and then a review hearing is held. A DVPO entered following a review hearing is generally in effect for one year. See also “Civil No-Contact Order”
Also referred to as “ED”. Equitable distribution is the process used to divide the marital estate (assets and debts). Anything earned or acquired during the marriage – other than an inheritance or a gift from a third party – prior to the date of separation is included as an asset to be divided. Any debts incurred for the joint benefit of the parties during the marriage and prior to the date of separation is included as a debt to be divided. The assets and debts are typically divided so that each party receives 50 percent. If an equal division would not be equitable, the court has the power to divide the marital estate in unequal portions.
Equitable Distribution Inventory Affidavit:
A court required form used in equitable distribution cases that provides a list of the assets and debts of the parties and the contentions of the parties as to how the court should divide the marital estate. Each party is required to complete this form and to provide supporting documents. (Some NC Counties only)
Documents or facts presented to the court by a party or on a party’s behalf in an attempt to either prove or refute a claim.
An ex parte action is one taken without the other side. An ex parte order is an order procured by one party without the other party having an opportunity to state their case, usually in an emergency situation. Ex parte communication refers to one party having communication with the judge about issues in a case without the other party being present. Ex parte communication regarding substantive issues in a case is prohibited.
The field of law including issues that relate to marriage and the family such as divorce, separation, child custody, alimony, support, and other issues. Included in this field are pre-marital issues, adoption, termination of parental rights and paternity. A related field which is not included as family law is juvenile law.
Final Pre-Trial Conference:
In equitable distribution cases, the attorneys meet with the judge to determine what issues remain that will be tried at the hearing.
A document in which one places monthly expenditures for both the date of separation and the present and on which the court relies to help set spousal support or child support.
Illicit Sexual Behavior:
Acts of a sexual nature voluntarily engaged in by a spouse and a person of either sex other than the other spouse.
Initial Pre-Trial Conference:
In equitable distribution cases, the attorneys meet with the judge to determine deadlines for discovery, and to make sure the case is proceeding in a timely manner.
A decision about property or debt distribution that is made by the court prior to a full hearing on property distribution and which is binding on the parties.
A discovery tool used by attorneys to gather information about the facts of a case by asking written questions of the opposing party. The opposing party is required to answer the interrogatories under oath to the best of his or her ability within 30 days of receiving the interrogatories.
Jurisdiction gives the court the power to act. There must be two types of jurisdiction present for all legal matters. Subject Matter Jurisdiction means the court can hear matters about the thing in question (such as divorce cases). Personal Jurisdiction means that court can hear matters affecting the person named as a party to the action. The court must have both personal and subject matter jurisdiction to proceed.
Marital misconduct is used to describe bad actions by one spouse to another spouse or to the marriage. Marital misconduct includes: illicit sexual behavior; abandonment by a spouse; maliciously removing one spouse from the residence; cruel or barbarous treatment endangering the life of a spouse; reckless spending of income or waste, destruction, or conversion of property; excessive use of alcohol or drugs; willful failure to provide sustenance and support for a spouse.
A mediator is a neutral third party who assists the spouses and their attorneys in reaching a resolution that is acceptable to everyone. In Family Court, the spouses are required to attend custody mediation and equitable distribution mediation. Attorneys are not allowed at custody mediation, which is free to the spouses. Attorneys are allowed to be present at equitable distribution in which the costs of the mediator are typically split equally between the spouses.
Motion for Contempt/Motion to Show Cause:
If a party willfully violates a court order and has the means to comply with the court order, that party may be subject to a motion for contempt. A motion and order for contempt requires the offending party to appear and show cause why he or she should not be held in contempt of court for violating the prior order.
Motion to Compel:
A motion to compel is typically filed against the opposing party when the opposing party has failed to comply with discovery or initial disclosure documents. If the judge finds the party has not done what he/she was supposed to do, the judge can issue an order compelling that party to comply and may, in the judge;s discretion, award the party bringing the motion attorney fees.
A series of exchanges between parties where different resolutions are submitted in an attempt to settle a matter.
Notice of Hearing:
A court required form that is used to provide the opposing party with notice of a particular date for a court hearing.
The person on the opposite side of the case who typically has an opposing interest. In family law cases, the opposing party is frequently the other spouse.
A document signed by a judge setting out the judge’s decision as to the parties’ legal dispute. Orders are enforceable by the contempt powers of the court which include fines and possibly jail if a party fails to comply with the order. A judgment is a type of order.
An order written in lay terms that sets out the agreement reached in custody mediation that is signed by both parties and a judge.
A class sometimes required or suggested by the Family Court for parties involved in a custody action. The class can be substantive with issues on how to physically care for a child or can discuss ways to help children through divorce and the rights children have not to be subjected to the legal issues of the parents.
An impartial person with special training to deal with high conflict custody issues who is appointed by the court when the parents need outside assistance to help resolve parenting issues. The parenting coordinator is authorized to help the parties reduce misunderstandings, attempt compromises, and identify disputed issues, and can make decisions to help resolve disputes.
The Plaintiff or Defendant in a lawsuit. Sometimes a third party may enter a case as an Intervenor and is, also, a party.
The person who brings a claim or action against another in court. In some matters this person can be referred to as the Petitioner.
Also referred to as “PSS”. PSS is temporary spousal support designed to provide some financial support to a dependent spouse while waiting for a full alimony hearing.
In North Carolina, the division of property is called equitable distribution. See equitable distribution definition above.
Qualified Domestic Relations Order:
Also referred to as a “QDRO”. An order directing the administrator of a retirement plan to set aside a portion of the retirement funds and transfer them to the other spouse without either spouse incurring any income tax consequences for the transfer.
Requests for Admission:
A discovery tool used by attorneys to gather information about the facts of a case. The request for admissions is a series of statements that the opposing party may answer by admitting the statement or denying the statement. The opposing party is required to answer the request for admissions within 30 days of receiving the request.
Request for Production of Documents:
A discovery tool used by attorneys to gather information about the facts of a case by asking the opposing party to produce documents related to the case. The opposing party is required to produce the documents within 30 days of receiving the request.
Separation/Date of Separation:
Separation occurs when the spouses no longer reside in the same residence. The date of separation is used for both equitable distribution purposes and for divorce. In equitable distribution, the date of separation value of the property is used in distributing the property. For divorce, the parties must be separated for one full year prior to filing for divorce, with at least one party forming the intent on or before the date of separation that the separation would be permanent.
A private contract voluntarily entered into by the parties that can resolve some or all issues of the parties such as child custody, child support, alimony, and equitable distribution. A separation agreement is not needed for the parties to be separated (see separation above), but is instead designed to resolve the issues between the parties amicably and privately so that the details of the arrangement are not a matter of public record.
Payments made to or for the benefit of the other spouse to help the person maintain the standard of living that they enjoyed during the marriage. Two types of spousal support are alimony and post separation support. The right to support is based on need, not fault, but marital misconduct can affect the amount or duration of support and pre-separation adultery is an absolute bar to receiving alimony.
In equitable distribution cases in some NC counties, the status conference is held with the Family Court Case Coordinator who sets due dates for the completion of mediation, court required forms, and the initial and final pre-trial hearings.
A legal process which compels the presence or a person at a legal proceeding. A subpoena duces tecum requires the person to come to court and produce certain listed documents.
A judicial determination where there are no genuine issues of material fact (no one disputes the facts that are important to the case) and that as a matter of law, a certain outcome is appropriate. Summary judgment is frequently used in divorce hearings where a party has met all the legal requirements for divorce so it is not necessary for the party to appear in court.
Every case requires a summons directed at a party to begin a case. If a summons is not issued, the court has no power to do anything in the case. If the summons is not served, the court has no power over the party who is not served.
Support is a term meaning monthly or periodic payments made to help maintain the standard of living of the other spouse (Spousal Support or Alimony) or a child (Child Support).
Temporary Restraining Order:
An order, frequently obtained ex parte, wherein the other party is either ordered to do something or is ordered to refrain from doing something. In equitable distribution cases, a temporary restraining order is typically used to prevent one spouse from removing all of the funds belonging to the parties or from destroying property. It can also be used to order a bank or financial institution to freeze the financial accounts. See also, DVPO.
Tenancy by the Entireties:
A way of holding real property in North Carolina as husband and wife. The real estate is owned not by the parties as individuals, but by the marriage itself. As the marriage owns the property, a creditor cannot take the property to repay the individual debts of one spouse. If one spouse dies, the other spouse receives the entire property. After divorce, the tenancy by the entireties no longer exists because the marriage no longer exists, and the creditor of one party can take that tenant’s interest in the property to pay this debt, or the property can pass to a third party on the death of one of the co-owners.
Termination of Parental Rights:
A proceeding used to terminate one or both parent’s rights to their child(ren). Frequently brought by the Department of Social Services (DSS) in abuse and neglect cases. Terminating the parental rights severs the right of the child(ren) to inherit from the parent and vice versa, and terminates the parent=s obligation to provide future child support. A parent whose parental rights are terminated has no more rights or obligations to the child than a stranger would have.
Evidence by spoken words or documents presented in court and under oath used to help prove or refute a claim.
Uniform Child Custody Jurisdiction Enforcement Act is a series of statutes entered in all 50 states which sets forth which court can hear child custody matters for the parties. It’s purpose is to prevent forum shopping and to allow the state with the most recent significant connection with the child to hear the matter.
Uniform Interstate Family Support Act is a series of statutes entered in all 50 states which sets forth which court can hear child support or spousal support matters for the parties and sets forth a procedure to enforce the terms in other states. It’s purpose is to insure the collection of support in cases when the parties oro ne party moves from the state of original jurisdiction.
Verdict: The decision of the court by a judge or jury.
A motion to withdraw is filed in order for an attorney to terminate or conclude their representation of a client. It is often done at the end of a court case. When the order allowing withdrawal is entered, it concludes the attorney=s representation.
Witness: A person who testifies under oath in court or at a deposition.