Voluntary sexual intercourse with between a married person and someone other than their spouse. In Alabama, adultery is considered a crime but it is rarely prosecuted. Proof of adultery is a ground on which divorce may be granted and also may be used as a reason to reduce the offending spouse’s marital property award in a property division.
The age, defined by statute (19 in Alabama), at which a person attains full legal rights especially civil and political rights such as the right to vote. Child support terminates as of the age of majority.
A voluntary declaration of facts in the form of written testimony which is sworn to before an officer authorized to administer oaths such as a notary public. A common misunderstanding by parties is that an affidavit by another person can be used instead of their in court testimony as to a contested issue of fact.
A court ordered allowance that one spouse pays to the other spouse for maintenance and support after they are separated, involved in a divorce, or after they are divorced. Generally, Alimony is taxable income to the recipient and excludable from the gross income of the payor spouse.
A fixed amount of money to be paid upon divorce by one former spouse to the other, in a lump sum or in installments. Typically, the total amount is not subject to modification regardless of any change in circumstance.
Alimony payable in usually weekly or monthly installments either indefinitely or until a time specified by a court order. This kind of alimony may usually be modified for changed circumstances of either party. In Alabama, it terminates upon the death of either party or remarriage or cohabitation of the obligee.
Temporary or interim alimony ordered by the court pending an action for divorce or separation in which one party has made a claim for periodic or permanent alimony.
Alimony found necessary to assist a divorced person in acquiring the education or training required to find employment outside the home or to reenter the labor force. It usually has time limitations, such as a maximum of one or two years.
A judicial declaration that a marriage is void. An Annulment establishes that the marital status never existed or a marriage never occurred.
A procedure undertaken to have a decision reconsidered by asking a higher court (the appellate court) to review, reverse, or reconsider the ruling of a lower court (the trial court). In divorce cases, generally only final orders can be appealed.
A judicial declaration that a marriage is void. An Annulment establishes that the marital status never existed or a marriage never occurred.
Coming into court as a party, interested party, or lawyer on behalf of a party or interested party, to a case or voluntarily submitting to the power of a court. Usually this is not a physical act, but a lawyer filing a document.
The state of being behind in the payment of a debt or the discharge of an obligation. Some arrearages carry interest penalties at the rate of 12% per annum.
A standard by which a court determines what arrangements would be to a child’s greatest benefit. In Alabama, this standard is used in deciding child-custody and visitation matters. There are many factors used in the “best interest” standard.
The act or process of determining the value of a business enterprise or ownership interest therein. Most of the time experts are hired to assist in this act or process.
A modification in the physical, emotional, or financial condition of one or both parties in a divorce case, used to show the need to modify a court order. Most of the time this is an involuntary occurrence that, if it had been known at the time of the divorce decree, would have resulted in the court’s issuing a different decree.
Statutory provisions that govern the amount of child support that one parent must pay to the other. In Alabama this is a mathematical formula found A.R.J.A. Rule 32 that calculates child support based primarily on the income of both parties.
The act or process of determining the value of a business enterprise or ownership interest therein. Most of the time experts are hired to assist in this act or process.
The fact or state of living together, usually with the suggestion of sexual relations. In Alabama, this is a factor used in the termination of alimony.
A marriage that takes legal effect, without license or ceremony, and is recognized by the law in the state it was created. Two people, capable of marrying, live together as husband and wife and hold themselves out to others as a married couple. Alabama does recognize common law marriages in limited circumstances.
This is the initial pleading filed in divorce proceedings. It states the basis for the court’s jurisdiction, the plaintiff’s claim and the demand for relief. A summons will generally accompany the Complaint for Divorce when the complaint is being formally served. In many cases, the Complaint for Divorce is not formally served but a copy will be mailed to the Defendant’s retained counsel who will then voluntarily file a notice of appearance — thereby eliminating the necessity of formal service of the Complaint for Divorce.
One spouse’s express or implied forgiveness of a marital offense by resuming marital life and sexual intimacy. If condonation is proved, the forgiving spouse is barred from proof of that offense as a ground for divorce.
Failure to comply with a court order by a person who is able to comply. It also includes conduct in court which obstructs a court in the administration of justice. Alabama law divides contempt into civil contempt and criminal contempt. In civil contempt, the usual sanction is to confine the person until he or she complies with the court order. The goal in civil contempt is to coerce an individual to comply with a court order and he or she must have the means to do so. A criminal contempt proceeding is punitive in nature and the purpose is to punish repeated or aggravated failure to comply with a court order.
A pleading filed by the Defendant also asking for a divorce or other relief filed in response to a Complaint or Petition. One reason for filing a counterclaim is that the person who brings the case has the right to voluntarily non-suit (dismiss the proceedings) at virtually any time prior to trial. However, a party cannot cause the entire case to be dismissed if the other side has filed a counterclaim. Cross Examination – Asking questions of a witness who was put on the stand by the other lawyer. Cross-examination is usually intended to discredit the witness or weaken the effect of the testimony.
The care, control, and maintenance of a child awarded by a court to a responsible adult. Custody involves legal custody (decision-making authority) and physical custody (care-giving authority), and an award of custody usually grants both rights.
An arrangement by which both parents share the responsibility for and authority over the child at all times, although one parent may exercise primary physical custody. Joint custody requires that both parents communicate well with each other so that decisions affecting the health, safety and well-being of the child are jointly determined. One parent may have the primary decision making authority in this regard. An award of joint custody does not necessarily mean an equal sharing of time. In fact, awards of “joint physical custody” or equal time sharing arrangements are generally not favored by the courts, even by agreement of the parties. In joint custody, the rights, privileges, and responsibilities are shared, though not necessarily the physical custody.
An arrangement by which one parent has full control and sole decision making responsibility – to the exclusion of the other parent on matters such as health, education, religion and living arrangements.
Qualified mental health professionals (generally either psychologists or licensed clinical social workers) interview and assess all family members to determine what is in the child’s best interest with regard to custody. The testing process will generally include mental health testing, investigation into the child’s home, background, and family environment, and interviews with the parents and the child(ren). A report is provided to the parties and the court detailing the findings and recommendations.
The omission or failure to perform a legal or contractual duty or to do it on time.
The person sued in a civil proceeding.
Under ERISA, a plan established and maintained by an employer primarily to provide systematically for the payment of definitely determinable benefits to employees over a period of years, usually for life, after retirement. Retirement benefits under a defined benefit plan are measured by and based on various factors such as years of service rendered and compensation earned. The amount of benefits and the employer’s contributions do not depend on the employer’s profits and the employer has the entire investment risk and must cover any funding shortfalls.
Under ERISA, an employee retirement plan in which each employee has a separate account funded by the employee’s contributions and the employer’s contributions (usually a preset amount), the employee being entitled to receive the benefit generated by the individual account. The value of the retirement benefit is the account balance.
Testimony under oath taken before a court reporter but not in court. Generally, this is a discovery method.
Asking questions of a witness by the lawyer who called the witness.
Procedures used to learn facts necessary to settle a case or prepare it for trial. The usual discovery vehicles are:
The legal dissolution of a marriage by a court.
Conduct against another member of a family which can include beatings, threats, stalking or other forms of intimidation, harassment, neglect, and physical, emotional, and sexual abuse. May include any act by one member of a family that causes one of its members physical or emotional harm.
Presence in a state with the intent to remain here.
A system of dividing property owned by parties to a divorce, under statutory guidelines that provide for a fair, but not necessarily equal, allocation of the property between the spouses. With equitable distribution, when a marriage ends in divorce, property acquired during the marriage is divided equitably between the spouses regardless of who holds title to the property. Alabama is an equitable distribution state. Under Alabama law an equal division of property is not required.
Proof presented at a hearing, including testimony, documents or objects.
Tangible things presented at trial as evidence.
Ex parte refers to any application to a court for relief made when only one side is present and in certain instances without formal notice.
To take money from wages or from an account to satisfy an unpaid court order for the payment of money.
A grandparent’s rights in seeking visitation with a grandchild. By statute, in certain circumstances, a grandparent may seek court-ordered visitation with a grandchild. Typically, theses circumstances include the death of the grandparent’s child (the child’s parent), and the divorce of the child’s parents. But the United States Supreme Court has held that the primary, constitutionally protected right of decision making regarding association with a child lies with the child’s parents. As a general rule, if the parent is a fit and proper guardian and objects to visitation, the parent’s will prevails.
The conduct or circumstances which must be proved to entitle a person to a divorce. In Alabama, the grounds for divorce are:
A person appointed by a judge to prosecute or defend a case for a person legally unable to do so, such as a minor child. Often referred to as GAL.
Any proceeding or judicial session, usually open to the pubic, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying.
The standard definition lawyers use for hearsay is an out of court statement asked to be introduced into evidence for the truth of the thing that is asserted. A non-legal definition of hearsay is testimony based upon rumor — what someone else says who is not in court — when you are asking the court to consider the rumor testimony based upon its truth. The most common exception to the hearsay rule is an admission of a party opponent. Generally, what the other party says is admissible as an exception to the hearsay rule. The second most common exception to the hearsay rule is the business record exception but even this exception requires certain background (foundation). Not all business records are admissible. Only those records where you can show that they were made in the regular course of the business and where the person who is testifying at least has knowledge of the record keeping system.
A court order providing for the withholding of a person’s income by an employer, usually to enforce a child support order. An order for income withholding is entered by the court. In Alabama, if there is an IWO, generally payments are made through the Alabama Central Disbursement Division and from there distributed to the receiving parent.
Written questions served on the other party who is required to serve sworn written answers within a specified time.
The court’s final determination of the rights and obligations of the parties in a case. A type of order. Also called a decree.
A court’s power to decide a case or issue a decree.
A court order or, in some jurisdictions, a written agreement between the parties, arranging the terms under which the parties will live apart after separating but remain technically married. While signifying the separation of the parties, it does not formally dissolve the marriage or permit the parties legally to marry other persons.
All of the proceedings that take place in the course of a lawsuit.
Property that is acquired during marriage and that is subject to distribution or division at the time of divorce.
The written agreement made between spouses concerning the settlement of all issues in a divorce.
A method of non-binding alternative dispute resolution involving a neutral third party (mediator) who is skilled in conflict resolution and tries to help the disputing parties reach a mutually agreeable solution. Mediation is confidential and generally not admissible in court.
A post divorce order that changes the terms of child support, custody, visitation or alimony. A modification order may be agreed to by the parties or may be ordered by the court. The party wishing to modify an existing order must show a material change in circumstances from the time when the order sought to be modified was entered.
A written or oral application to the court requesting a court to make a specified ruling or order.
Also called “irreconcilable differences.” A divorce granted without proving that one party is guilty of misconduct. Alabama is not a “pure” no fault state. There is a 30 day waiting period. If there is an agreement, it can be filed in 30 days after the filing of a Complaint for Divorce. The legal standards for no fault divorce is that “irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.”
Property which is not marital in character and not subject to division by the court.
A direction, ruling or command delivered by a court or judge.
A situation in which one parent has manipulated a child to fear or hate the other parent; a condition resulting from a parent’s actions designed to poison a child’s relationship with the other parent.
The time a child spends with each parent. May be established by agreement or a judge’s order.
A court proceeding to determine whether a person is the father of a child (especially one born out of wedlock), usually initiated by the mother in an effort to obtain child support. A paternity test, usually involving DNA identification or tissue-typing, is used for determining whether a given man is the biological father of a particular child.
Pendente Lite is Latin meaning “while the action is pending”. During the proceeding or litigation; in a manner contingent on the outcome of litigation.
The crime of lying under oath. It includes lying during a trial, at a deposition, or in a written affidavit. It can be punishable by imprisonment, although divorce lawyers know that perjury is generally difficult to prove in many issues involving divorce proceedings. Divorce lawyers refer to this as the “he said – she said” problem.
The person who files the action.
A document filed with the court which asks for something or responds to a pleading filed by the other party.
An agreement entered into during marriage to define each spouse’s property rights in the event of death or divorce. The term commonly refers to an agreement between spouses during the marriage at a time when separation or divorce is not imminent. When dissolution is intended as a result, it is more properly called a marital settlement agreement.
An agreement signed in contemplation of marriage, which will address rights (usually property division and alimony) as to either dissolution of marriage and/or rights to the estate of the other person. Often parties reach agreements prior to marriage to attempt to resolve all of the issues between them in the event of a divorce. The purpose of such agreements is to vary the provisions that the law otherwise would allow. To be valid, such agreements must follow certain requirements to guarantee that they are fair and proper. With regard to the enforceability of premarital agreements, the Uniform Premarital Agreement Act provides for broad enforceability of such agreements so long as there is fair and reasonable disclosure of the property or financial obligations of each party, the agreement is executed voluntarily and the agreement was not unconscionable when executed. Such agreements addressing divorce often limit a party’s ability to seek alimony from her or his spouse. Such agreements addressing estate issues often prevent a party from being ability to renounce a will and take a statutory third of the other party’s estate.
A financial concept. It refers to the time value of money and goes along with the saying that a bird in the hand is worth more than two in the bush. In determining the present value, if a future stream of payments, the future payment stream is discounted back to a present value using a discount rate. This concept is important in divorce cases both in valuing businesses and in determining the value is a defined benefit plan (if there is to be other marital assets awarded in lieu of an interest in the plan) — a swap which lawyers call an offsetting property settlement award.
The presumption that the father of a child is the man who (1) is married to the child’s mother when the child was conceived or born (even though the marriage may have been invalid), (2) married to the mother after the child’s birth and agreed either to have his name on the birth certificate or to support the child, or (3) welcomed the child into his home and later held out the child as his own.
The parent who has had the greatest responsibility for the daily care and rearing of the child.
An evidentiary rule that gives a witness the option to not disclose the fact asked for, even though it might be relevant; the right to prevent disclosure of certain information in court, especially when the information was originally communicated in a professional or confidential relationship. Assertion of a privilege can be overcome by proof that an otherwise privileged communication was made in the presence of a third party to whom the privilege would not apply.
A judgment in a divorce case determining the distribution of the marital property between the divorcing parties. This generally includes the division of marital debts as well as assets.
Pro Se is Latin “of oneself.” A party who is representing him or herself in a court proceeding without the assistance of a lawyer.
An official roster in which an unwed father may claim possible paternity of a child for purposes of receiving notice of a prospective adoption of the child.
This acronym is pronounced “QUADRO” or “Q-DRO.” A state court order or judgment that relates to some state domestic relations matter and that (1) recognizes or provides for an alternate payee’s right to receive all or part of any benefits due a participant under a pension, profit-sharing, or other retirement benefit plan, (2) otherwise satisfies §414 of the Internal Revenue Code, and (3) is exempt from the ERISA rule prohibiting the assignment of plan benefits.
When a party moves to another location (or state).
A written request by one party to the other asking the other party to admit or deny certain facts.
A written request by one party to the other asking the other party to turn over tangible objects, usually documents. Generally a party is required to update discovery responses during the litigation proceedings.
The person who did not file the action.
A document used to answer or respond to various pleadings. Answers or responses usually admit or deny specific allegations or claims in the document being answered. Those allegations not specifically denied are therefore admitted. It is therefore only necessary to state the allegations which are denied.
A court order which requires a party to do some act or prohibits a party from doing some act. Restraining Orders can be entered on an emergency basis (sometimes without notice). In order to obtain a Restraining order (injunctive relief), there must be a clearly ascertainable right in need of protection, that there be an irreparable injury or loss; that there is no adequate remedy at law; that there be a likelihood of success on the merits and that bond be waived (in appropriate cases). Restraining Orders can be obtained “ex parte” and can also be mutual but mutual injunctions are usually entered by agreement of the parties.
Money paid by the client to the lawyer to obtain a commitment from the lawyer to handle the client’s case. In divorce cases, a retainer is generally a deposit against which the lawyer charges fees as they are earned. This is a fee that is sometimes charged by a lawyer for the agreement to take your case and to commit to being available for your case. Normally, an engagement fee is in addition to charges on an hourly rate basis.
Property that a spouse owned before marriage or acquired during marriage by inheritance or gift from a third party which has not been used for the common benefit of the marriage.
The formal delivery of official documents by means prescribed by law which is noted on a return of service. Usually this is accomplished either through a private process server or a sheriff’s officer. Service can be waived by executing an “acceptance of service” or “waiver of service.”
The resolution of disputed issues by agreement between the parties. Most lawyers use the statistics that 95% of cases are settled rather than tried.
One parent has the right to make all decisions regarding a child.
An agreement between the parties or their lawyers about issues in the lawsuit.
A document served on a party or a witness commanding appearance at a certain time and place. A Records only Subpoena is sometimes referred to as a Subpoena Duces Tecum. It is a requirement to produce documents, papers, or other things listed in the subpoena in lieu of a personal deposition.
A pleading filed with the court and served on the opposing party giving formal notice of the filing of the divorce. A writ or process commencing the plaintiff’s action and requiring the defendant to appear and answer.
Orders granting relief between the filing of the lawsuit and the judgment or final order.
The final hearing in court to decide the issues in the case.
A divorce in which there is no dispute as to how any of the issues will be resolved.
Venue refers to the division of the court in which an action should be commenced. It is statutory and is distinguishable from jurisdiction. Though any court in Alabama may have jurisdiction over Alabama residents, either party may insist that the proper venue be followed. An action may be filed in the county in which the Defendant resides, the county where husband/wife separated, or, if the defendant is not an Alabama resident, then it may be filed in the county of residence of the plaintiff.
The court approved right (not obligation) of a relative, especially a non-residential parent who does not have primary custody of the child, of access to a child.
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