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Marriage & Divorce
Words related to marriage and divorce fall into two categories: common terms like "marriage" and legal terms like pro per or pro se, which means to represent yourself in court. The Equality in Marriage and Divorce website pulled together a short-list of words essential to know if you are seeking equality in marriage or divorce. For definitions of other terms specific to your situation, we suggest you visit the Nolo (link) comprehensive legal encyclopedia.
ALTERNATIVE DISPUTE RESOLUTION (ADR) includes negotiation, conciliation, mediation and arbitration, all ways which may avoid a courtroom resolution. In
MEDIATION, a neutral third party helps the couple find a mutually satisfactory solution but has no power to impose it. ARBITRATION, using procedures more formal than mediation but less formal than a trial, comes in many forms, including
BINDING ARBITRATION in which the arbitrator can enforce the agreement.
COMMUNITY PROPERTY is a system in which marital assets and debts are generally divided equally upon divorce. Only Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington and Wisconsin have community property laws. All the other states have EQUITABLE DISTRIBUTION, in which marital assets are divided "equitably" or "fairly" in divorce, but the courts decide what's equitable and fair unless the couple has signed a martial contract. Often the courts award the higher wage earner a greater portion. In community property states, couples may have SEPARATE PROPERTY, which is defined as property owned and controlled entirely by one of the partners and may include assets acquired before marriage.
COHABITATION is living together as or as if husband and wife. In recent years, this concept has expanded to include any two partners who have integrated their residence, property and daily lives.
COHABITATION AGREEMENT, is a private contract between two cohabitants, which typically tries to establish contractually for the parties the rights and obligations that married people obtain by custom, statue, and agreement.
DEFERRED COMPENSATION PACKAGE covers all retirement assets or postponed income earned during the marriage. Important to consider in a 50-50 division of marital assets even though they may not be available until after retirement.
DISCOVERY is a formal investigation to collect information and documents before a trial. Interviews called DEPOSITIONS are conducted under oath and recorded by a court reporter. The DEPOSITION TRANSCRIPT may be presented at the trial if the witness is unavailable
DIVORCE is the legal termination of marriage. Also called DISSOLUTION in some states. Divorce laws differ from state to state. Until the 1970s, most states required GROUNDS FOR DIVORCE such as adultery, desertion or other marital misconduct. Such FAULT DIVORCES are still allowed in 35 states, but today NO-FAULT DIVORCES are granted for less specific reasons such as incompatibility or irreconcilable differences.
DIVORCE AGREEMENT is a document, signed by both divorcing partners, outlining division of property, alimony, child custody, and child support. Also called a MARITAL SETTLEMENT AGREEMENT, MARITAL TERMINATION AGREEMENT or SETTLEMENT AGREEMENT. It becomes part of the DIVORCE DECREE, the final decision in a divorce action.
INVENTORY AND APPRAISEMENT is the listing and valuation of marital property before division in a divorce. It's important to remember that you can't appraise anything you don't know about. Anyone considering a divorce should make sure all the assets are on the table. Everyone at every stage of marriage should know what the marital assets and debts are.
MARITAL PROPERTY is most of the property accumulated by spouses during a marriage. It is called community property in some states. What is considered marital property varies from state to state.
MARRIAGE is the legal union of two people with rights and responsibilities concerning property and support defined by law. Marriage laws, like laws governing divorces or annulments, vary from state to state. A MARRIAGE LICENSE, obtained for a fee usually from the country clerk's office, is required before a marriage can take place. A
MARRIAGE CERTIFICATE, usually signed by the couple and witnesses at the wedding, is proof of marriage, and usually issued a few weeks after the married couple file for the certificate in a county office.
PREMARTIAL AGREEMENT is an agreement or contract made by a couple before marriage that defines certain aspects of their relationship, usually the management and ownership of property, and sometimes whether alimony will be paid if the couple later divorces. Courts usually honor premarital agreements unless one person shows that the agreement was likely to encourage divorce, was written with divorce in mind or was entered into unfairly or under pressure. A premarital agreement may also be known as a "prenuptial agreement" or "pre-nup." A similar agreement made after the couple is wed is called a POST-MARITAL AGREEMENT or "postnup".
REHABILITATIVE ALIMONY is payment determined by the court or the settlement agreement to help a former spouse become financially self-sufficient. In cases of marriages over 10 years or when a spouse physically unable to work, ALIMONY is considered "spousal support" or "maintenance" without the expectation that the former spouse will become self-supporting.
SEPARATION is simply when a married couple lives apart, but separations may also be a TRIAL SEPARATION during which the couple decides on the future of their marriage or a PERMANENT SEPARATION during which any assets acquired by either marital partner is considered separate property. A LEGAL SEPARATION involving the court rules on a division of property, maintenance (alimony) or child support may be obtained if the couple must remain married for religious reasons or for one partner to receive medical benefits.
Legal
A Contested Divorce- is a case in which the parties cannot agree and must go to trial.
An Uncontested Divorce- is case where both parties agree to the divorce, and file the paperwork with no need to go to trial.
Legal Separation- does not mean that the parties are living separately, but rather that there is an agreement stating to such.
Physical or Residential Custody- who the children live with, this is usually subject to visitation by the other parent
Sole Custody- all decision making is made by that parent (usually permitting the other parent visiting rights)
Joint Custody- all decision making is made by both parents together
Injunctions and Protective Orders- are orders of the court that are issued to prevent harm pending future hearings. If you/ your client are afraid that your spouse will beat you, take your money out of the bank, or run off with your children, the court can enjoin or prohibit these things by issuing an injunction. If a spouse disobeys an injunction the court can put the person in jail, or you may be fined.
Contempt- if spouse does not pay child support, or violates an order they can be forced to comply. One possible sep would be to ask the court find the spouse in contempt. Contempt findings can ultimately lead to jail time if the judge believes that your ex spouse is intentionally refusing to comply with a lawful court order.
Income assignment order- if spouse is at least a month behind in child support and is employed, you may be able to get an order that will take the child support directly out of the ex?s pay and require the employer to pay it to the court clerk. The court will then pay this money to you.
Marital property- is property you acquired during your marriage
Separate property ? is property that was separate from before the marriage and /or not commingled.
Child Support- Money paid to the spouse to support he children
Maintenance- new name for alimony, money to the wife that the husband pays in order to support the wife.
Mediation- Headed by a mediator, the parties pick a neutral to help them sort through the divorce and come to a decision on all fronts, financial, custody..etc. The mediator is not a binding authority meaning the parties do not have to abide by him, they may walk out at any time
Arbitration- Headed by an arbitrator, same concept as mediation, EXCEPT this is binding. Meaning the arbitrator?s decision will be upheld in a court of law.
Child Custody
The Uniform Child Custody Jurisdiction Act (UCCJA) is a law that has been adopted by all states. It provides a set of guidelines for allocating initial custody and lists four factors that determine whether a court has jurisdiction. If the court does not meet one of these conditions, it must defer to another court. Because some parents move to another state, or flee to another country. Jurisdiction can become a serious problem when two states decide different custody decisions. As a result, the law tries to discourage parents from moving to another state to attempt to get a better custody decision.
Here are the four factors:
Home State is the state where the child lived with her parent for at least six months, or when a child is less than six months old, the state in which the child was born.
Abandonment lets the court assume jurisdiction when there is reason to believe that the child will be neglected or abused if returned home.
Best Interest means the court can determine custody for the child if it determines this is the best for a child ? particularly if the child is close to a family member in that particular state.
No Other State. If no other state means the 3 above conditions, or if a state does but does not assert jurisdiction, the court has jurisdiction.
Parental Kidnapping Prevention Act (PKPA) The PKPA takes over in cases where the UCCJA and PKPA overlap.
Halachic (Jewish Law) Terminology
Beis Din - Jewish court
Toain- Jewish lawyer so to speak, who represents the parties in beis din
Dayan- Jewish judge who sits in the beis din (usually 3)
Zavlah- Each side picks one of the three dayanim, and those two decide on a third
Get- the Jewish divorce, it is a process where a scribe will write up the get in the presence of the husband.
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