The Crittenden Firm

Resources: Glossary

Adultery
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.

Age of Majority
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.

Affidavit
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.

Alimony
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.

Annulment
A judicial declaration that a marriage is void. An Annulment establishes that the marital status never existed or a marriage never occurred.

Answer
The defendant’s first responsive pleading that must be filed by the Defendant after one spouse commences a divorce action by filing a Complaint for Divorce. An answer addresses the merits of the case, usually by denying the Plaintiff’s allegations, and also usually sets forth the Defendant’s defenses and counterclaims. This must be filed 30 days after receiving service.

Appeal
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.

Appearance - 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.

Arrears
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.

Best Interest of the Child
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.

Business Valuation
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.

Change in Circumstances
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.

Child Support
One parent’s legal obligation to contribute to the economic maintenance of a child until they reach the age of majority. In a custody or divorce action this is the money legally owed by one parent to the other for the support and expenses of the children of the marriage. The right to child support is the child’s right and cannot be waived, and any divorce provision waiving child support is void. Child support is generally not income to the recipient. Generally, Alimony, on the other hand, is taxable to the recipient.

Child Support Guidelines
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.

Cohabitation
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.

Common Law Marriage
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.

Complaint for Divorce
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.

Condonation
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.

Contempt of Court
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.

Counterclaim
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.

Custody
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.

Custody Evaluation
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

Default
The omission or failure to perform a legal or contractual duty or to do it on time.

Defendant (Respondent)
The person sued in a civil proceeding.

Defined Benefit Plan - 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.

Defined Contribution Plan
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.

Deposition
Testimony under oath taken before a court reporter but not in court. Generally, this is a discovery method.

Direct Examination
Asking questions of a witness by the lawyer who called the witness

Discovery
Procedures used to learn facts necessary to settle a case or prepare it for trial. The usual discovery vehicles are: 1) Request for Production (directed to a party); 2) Interrogatories (directed to a party); 3) Party Depositions; 4) subpoenas for deposition or production of records (directed to a non-party).

Divorce
The legal dissolution of a marriage by a court.

Domestic Violence
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.

Domicile
Presence in a state with the intent to remain here.

Equitable Distribution
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.

Evidence
Proof presented at a hearing, including testimony, documents or objects.

Exhibits
Tangible things presented at trial as evidence.

Ex parte
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.

Garnish
To take money from wages or from an account to satisfy an unpaid court order for the payment of money.

Grandparent rights
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.

Grounds for Divorce
The conduct or circumstances which must be proved to entitle a person to a divorce. In Alabama, the grounds for divorce are:

1. No Fault Grounds Irreconcilable differences or incompatibility
2. Fault Grounds
1. Incapacity or Impotency
2. Adultery
3. Voluntary abandonment from bed and board for one year next preceding the filing of the complaint
4. Imprisonment for two years, the sentence being for seven years or longer
5. Crime against nature
6. Habitual Drunkenness or drug addiction
7. Incompatibility
8. Incurable insanity
9. Irretrievable breakdown of the marriage
10. Pregnancy at the time of marriage, without husband's knowledge or agency
11. Violence and reasonable apprehension of such violence
12. Separation without support for two years

Guardian ad litem
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.

Hearing
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.

Hearsay
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

Income Withholding Order (IWO)
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.

Interrogatories
Written questions served on the other party who is required to serve sworn written answers within a specified time.

Judgment
The court’s final determination of the rights and obligations of the parties in a case. A type of order. Also called a decree.

Jurisdiction
A court’s power to decide a case or issue a decree.

Legal Separation
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.

Litigation
All of the proceedings that take place in the course of a lawsuit.

Marital Property - Property that is acquired during marriage and that is subject to distribution or division at the time of divorce.

Marital Settlement Agreement
The written agreement made between spouses concerning the settlement of all issues in a divorce.

Mediation
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.

Modification Order
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.

Motion
A written or oral application to the court requesting a court to make a specified ruling or order.

No Fault Divorce
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.”

Non-Marital Property
Property which is not marital in character and not subject to division by the court.

Order
A direction, ruling or command delivered by a court or judge.

Parental Alienation Syndrome
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.

Parenting Time
The time a child spends with each parent. May be established by agreement or a judge’s order.

Paternity suit
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
Pendente Lite is Latin meaning “while the action is pending”. During the proceeding or litigation; in a manner contingent on the outcome of litigation.

Perjury
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.

Petitioner
The person who files the action.

Pleading
A document filed with the court which asks for something or responds to a pleading filed by the other party.

Postnuptial Agreement
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.

Premarital or Prenuptial 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.

Present Value
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.

Presumption of Paternity
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.

Primary Caregiver
The parent who has had the greatest responsibility for the daily care and rearing of the child.

Privilege
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.

Property Settlement
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
Pro Se is Latin “of oneself.” A party who is representing him or herself in a court proceeding without the assistance of a lawyer.

Putative Father Registry
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.

Qualified Domestic Relations Order (QDRO)
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.

Relocation
When a party moves to another location (or state).

Request for Admissions
A written request by one party to the other asking the other party to admit or deny certain facts.

Request for Production
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.

Respondent (Defendant)
The person who did not file the action.

Response
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.

Restraining Order
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.

Retainer
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.

Separate property
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.

Service of Process
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.”

Settlement
The resolution of disputed issues by agreement between the parties. Most lawyers use the statistics that 95% of cases are settled rather than tried.

Sole Custody
One parent has the right to make all decisions regarding a child.

Stipulation
An agreement between the parties or their lawyers about issues in the lawsuit.

Subpoena
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.

Summons
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.

Temporary Orders
Orders granting relief between the filing of the lawsuit and the judgment or final order.

Trial
The final hearing in court to decide the issues in the case.

Uncontested Divorce
A divorce in which there is no dispute as to how any of the issues will be resolved.

Venue
The place where a case will be heard. For example, if the place a case is heard is Jefferson County a lawyer might say that the venue is in Jefferson County. There are cases where venue is transferred to one county to another, often due to a motion to transfer venue. When there is a transfer from one county to another county it is called a motion to transfer due to forum non conveniens.

Visitation
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.