New York Divorce Terms – Glossary of Words Commonly Used in Legal Procedings
ACTION – The legal term for a Lawsuit.
AFFIDAVIT – A written statement of facts made under oath and signed before a notary public.
AFFIRMATION – A written statement of facts made by an attorney under penalty of perjury and signed by him/her.
AFFIRMATIVE DEFENSE – Legal defenses in response to a spouse’s pleading, even if the allegations of the Complaint were true.
AGREEMENT – A transcribed or written resolution of the disputed issues.
ALLEGATION – Statement of facts contained in a Pleading or Affidavit setting forth what the pleader intends to prove.
APPEAL – The process whereby a higher Court reviews the proceedings resulting in an Order or Judgment of a lower Court and determines whether there was reversible error. An Appeal is “taken” by serving and filing a Notice of Appeal within 30 days after service of the Order or Judgment to be appealed. An Appeal is “perfected” when all of the required papers are filed with the Appellate Court.
APPEARANCE – The formal submission by a Defendant to the jurisdiction of the Court after having been served with a Summons. Appearance also refers to the physical presence of a party at Court.
ANSWER – The Second Pleading in an action for divorce, separation or annulment, which is served in response to the Complaint and which admits or denies its allegation.
CHANGE OF VENUE – A change of the place where the case is to be tried.
CHILD SUPPORT – Support for a child (not taxable to the recipient or deductible to the payor spouse).
CLAIM – A charge by one spouse against the other.
COMPLAINT – The First Pleading in action for divorce, separation, or annulment, setting forth the allegations upon which the requested relief is based.
CONDONATION – The adultery of a spouse is not grounds for divorce if the complaining party forgives it, for example continuing to cohabit with the offender.
CONTEMPT OF COURT – The willful and intentional failure to comply with a Court Order, Judgment, or Decree by a party to the action. Contempt of Court is punishable by fine or imprisonment.
CONTESTED CASE – Any case where the Court must decide one or more issues that are not agreed to by the parties. Cases are considered contested until all issues have been agreed to.
CROSS-EXAMINATION – The questioning of a witness presented by the opposing party on trial or at a deposition, to test the truth of that testimony or to develop it further.
DECREE – The Final Ruling of the judge on an action for divorce, legal separation, or annulment. Same as Judgment.
DEFAULT ORDER OR DEFAULT JUDGMENT – An Order or Judgment granted by the Court without the other side’s being heard because they failed to plead or submit papers within the time allowed or failed to appear at the hearing.
DEFENDANT – The one who defends the Lawsuit brought by another. Same as Respondent.
DEPOSITION – The testimony of a witness taken out of Court under oath and reduced to writing. Depositions are taken for the purpose of discovering the facts upon which a party’s claim is based; obtaining financial information or discovering the substance of a witness’s testimony prior to trial. The deposition may be used to discredit a witness if he changes his testimony. Depositions are used to preserve the testimony of a witness who will be unable to appear at trial.
DIRECT EXAMINATION – The initial questioning of a witness by the attorney who called him to the stand.
DISCLOSURE – Procedures followed by attorneys in order to determine the nature, scope, and credibility of the opposing party’s claim and his/her financial status. Disclosure devices include depositions, written interrogatories, and notices to produce various documentation relating to issues which are decided in the case. Psychological examinations, blood tests, and court social-service investigations are also part of disclosure.
DISCRETION OF THE COURT – The area of choice available to a judge to make a legally acceptable decision on his interpretation of the evidence.
DISTRIBUTIVE AWARD – A lump sum, tax-free payment ordered by the Court in lieu of or to supplemental or facilitate a property distribution.
EMANCIPATION – The point at which a child comes of age. Children are emancipated in New York upon reaching the age of 21 or upon marriage, leaving the custodial residence, or entering the armed services. Emancipation terminates the duty to support.
EQUITABLE DISTRIBUTION OF PROPERTY – A system of distributing property acquired by spouses during their marriage in connection with a divorce or dissolution proceeding. The division is based on a variety of equitable factors, including length of the marriage, relative financial contribution, contribution as a spouse and homemaker and respective need. Title to property in the name of either spouse does not necessarily restrict the Court’s right to award all or part of that property to the other spouse as part of an Equitable Distribution.
EVIDENCE – Documents testimony or other demonstrative material offered to the Court to prove or disprove allegations in the pleadings or in issue.
EX PARTE – An application for Court relief without the presence of the other party, due either to a lack of notice or choice of the other party not to appear.
FOUNDATION – The evidence that must be presented before asking certain questions or offering documentary evidence on trial.
GROUNDS FOR DIVORCE – The legal circumstances which must be proved before a divorce can be granted, also called a “Cause of Action.”
HEARING – Any proceeding before the Court where testimony is taken for the purpose of resolving disputed issues.
HOLD-HARMLESS – When one spouse assumes liability for a debt or obligation and promises to protect the other from any loss or expense in connection therewith.
HOSTILE WITNESS – A witness who demonstrates so much prejudice during direct examination that the party who has called him is allowed to cross-examine. The greater flexibility of cross-examination enables the questioner to ask leading questions and to attack the credibility of the witness. IAS – The Individual Assignment System. Soon after an action is started, the attorney(s) are required to file a Request for Judicial Intervention (“RJI”) with the Clerk of the Court. The case is then assigned, by computer, to an individual judge who will handle every aspect of the case to its conclusion.
IMPEACHMENT – The act of proving either by prior inconsistent statement or other conflicting evidence that a witness is lying.
INDEMNIFICATION – To promise to reimburse another person in case of an anticipated loss; the same as Hold-Harmless.
INJUNCTION – A Court Order forbidding someone from doing a particular act which is likely to cause injury or property loss to another party (same as a Restraining Order).
INTERROGATORIES – A series of written questions served upon the opposing party in order to discover certain facts regarding the disputed issues in a matrimonial proceeding. The answers to Interrogatories must be under oath and served within a prescribed period of time.
JOINT PROPERTY – Property held in the name of more than one person.
JUDGMENT – The Order of the Court determining the action; same as Decree.
JURISDICTION – The power of the Court to rule upon issues relating to the parties; their children or their property.
LEGAL SEPARATION – A Judgment of the Court or written Agreement directing or authorizing the spouses to live separate and apart. Actions for legal separation provide for maintenance, child custody, and support, but do not provide for Equitable Distribution of marital property. A decree of separation does not dissolve the marriage and does not allow the parties to remarry.
LEVERAGE FACTORS – Particular considerations, based on the priorities of the parties, which induce them to settle disputed issues. The skillful employment of these leverage factors generally controls the successful outcome of a settlement.
MAINTENANCE – Spousal support (deductible to the payor spouse and taxable as income to the recipient).
MARITAL PROPERTY – Accumulated income and property acquired by the spouses during the marriage, subject to Equitable Distribution by the Court. Property acquired by gift from third parties or inheritance, and personal injury recoveries is not marital property.
MISTRIAL – A trial that is terminated prior to its completion, due to the occurrence of some fundamental error that would render the trial invalid. Following a mistrial, the case must be tried again from the beginning.
MOTION – A written application to the court for some particular relief such as temporary support, injunction, or attorney’s fees, which is made upon advance notice to the other party.
NO-FAULT DIVORCE – A marriage-dissolution system whereby divorce is granted without the necessity of one of the parties guilty of marital misconduct.
NOTICE OF MOTION – A paper which is served upon the other attorney or spouse telling them that we are making a motion to the court on a certain day.
OPTING OUT AGREEMENT – An Agreement made before or during marriage providing for the rights and obligations of the spouses, maintenance, child support, property distribution in the event of the dissolution of their marriage.
ORDER – The Court’s ruling on a Motion requiring the parties to do certain things or setting forth their rights and responsibilities. An Order is reduced to writing, signed by the judge and filed with the Court.
PERSONAL JURISDICTION – The power of the Court to order a spouse to do a particular thing such as pay maintenance or child support.
PLAINTIFF – The party who files the Lawsuit.
PLEADING – Formal written application to the Court for relief and the written response thereto. Pleadings include complaints, answers, counterclaims, and replies.
PRAYER – That portion of a pleading, at the end, which specifies the relief that is requested of the Court.
PRIVILEGE – The right of a spouse to make admissions to an attorney, clergyman, psychiatrist, his/her spouse, a doctor or certified social worker which are not later admissible in evidence.
REBUTTAL – The introduction or evidence at a trial that is in response to new matter raised by the Defendant at an earlier stage of the trial.
RELIEF – Whatever a party to a Lawsuit asks the Court to do; dissolve the marriage, award support, enforce a prior court order or decree, divide property, enjoin certain behavior, dismiss the Complaint of the other party.
REPLY – The pleading filed in answer to the allegations of a Counterclaim.
RULES OF EVIDENCE – The rules that govern the method of presentation and admissibility of oral and documentary evidence at Court hearings or depositions.
SETOFF – A debt or financial obligation of one spouse which is deducted from the debt or financial obligation of the other spouse.
SETTLEMENT – The agreed resolution of disputed issues.
SETTLEMENT AGREEMENT – The settlement reduced to a written document.
SHOW CAUSE – (Same as Order to Show Cause) Written application to the Court for some type of relief which is made upon such notice to the other party as the Court directs and which may contain a restraining order, temporary injunction, or other ex parte relief, pending the determination of the Motion.
STATUS QUO – The existing state of things; leaving things as they are without modification or alteration. “Things” can be anything from visitation arrangements to property rights.
STIPULATION – An Agreement between the parties or their counsel.
SUBPOENA – A document served upon a person who is not a party to the action, requiring him to appear and give testimony at a deposition or Court hearing. A Subpoena is normally accompanied by a witness fee set by Statute, as well as a mileage fee for transportation costs to and from the place to which the individual is subpoenaed. Failure to comply with the Subpoena could result in punishment by the Court.
SUMMONS – A written notification to the Defendant that an action has been commenced against him, and requiring that the Defendant appear within a specific period of time to answer the Complaint.
SURREBUTTAL – Testimony offered by the Defendant to counter any new matter contained in the rebuttal testimony offered by the Plaintiff.
TEMPORARY OR PENDENTE LITE MOTIONS – Applications to the Court for interim relief pending the final decree of divorce, separation, or annulment. Typical temporary motions include motions for temporary maintenance, child support, attorneys’ fees, expert fees, custody, visitation, enforcement or modification of prior temporary orders. The Court enters a pendente lite order after determining a motion. Motions are brought on by the service of a notice of motion or order to show cause, with supporting affidavits.
TESTIMONY – Statements under oath by a witness in a Court hearing or deposition.
TRIAL – A formal Court hearing to decide disputed issues raised by the pleadings.
VACATED – When a Court order, judgment or decree is somehow defective, it is vacated–that is, eliminated — and either a substitute order is entered or a new hearing is granted, which will ultimately result in a new order, judgment or decree.
VERIFICATION – A pleading made under oath and signed before a notary public.