Family law focuses on the bonding and breakup of families: marriage, divorce, child custody, and adoption. Unlike other areas of law the primary motivation is fairness. Since fairness is a fuzzy issue — and opposed to say, contract construction — family law judges have significantly more leeway than judges in other courts.
Family law cases are emotional. Violence is more likely to break out in family court than any other court, including criminal court. The issues reach the core of our value system and question our definitions of right and wrong in the most personal way imaginable.
Family law is defined overwhelmingly by state; that is, each state has a different set of laws. However, we see many of the same terms, ideas, and processes across states and even around the world. I’ll try to define these terms, keeping a running list with a brief description.
In more posts I’ll explore them in more depth. I’ll explain the processes, the individual events, and try to show the law in its historical context. This list is a work in process; if you believe there is a term that belongs here, or an alternative definition, please leave a comment or send me an email.
Adversarial Process. The notion that when two attorneys fight one another, under a predetermined series of laws, the truth will emerge. This often does not work well in family court.
Alienation. A process where one parent tries to convince a child the other parent is bad. Rarely successful and typically viewed by judges as a form of child abuse. Also referred to as Parental Alienation Syndrome or PAS.
Alimony. Ongoing payments from one parent to the other to take care of the parent. Sometimes these are very short-term and other times the payments last forever. Some states don’t have alimony.
Annulment. Pretending the marriage didn’t happen. Usually rare unless the couple changes their mind very quickly.
Appeal. Asking a higher court, typically with a panel of judges, to review the decision of a lower court, which usually has only one judge.
Arbitration. Private court. Typically each side picks one judge, and together they pick a third. Many family law issues, especially custody and alimony, are not eligible for arbitration.
Assets. Your stuff, whether tangible (like a car) or intangible (like a business deal).
Attorney. A licensed professional that knows the law and represents an individual. An attorney must abide by the laws and rules governing attorneys, but must also watch out solely for the best interests of their client; attorneys are usually required to be adversarial — their job is to fight, not make or keep the peace.
Attorney Ad Litem. Similar to a Guardian Ad Litem except they argue on behalf of a child, rather than stand in place of a child. Basically a lawyer to represent your child.
Best Interest Test. A series of criteria, usually created by elected officials, which family court judges use to determine what is best for a child. These vary wildly by state and change over time within the same state.
Bankruptcy. Where you’re likely to end up if you fight too much about who gets what. A process defined by federal law allowing a person to eliminate their debt either immediately or over time.
Chancery. Fancy term for Court of Equity; a court operating under rules of fairness. Most family court proceedings take place in equity, or chancery.
Child Support. Payments from one parent to the other to support the child.
Child Support Formula. All states are required to have a math-based formula used to determine the appropriate amount of child support based. These usually take into account the number of children, the time each child spends with each parent, and the income of each parent. Judges usually must have a good reason for awarding support substantially higher or lower than the support formula. Also called Child Support Guidelines.
Civil Contempt. Typically contempt of court — refusing to obey a court order — regarding children or alimony. Overwhelmingly, failure to pay alimony or child support. People are often jailed for contempt though can be released if they pay a “purge” amount — some amount they can afford.
Community Property. A presumption that everything acquired during a marriage — both assets and debts — are owned 50/50 to prevent bickering over who purchased/build/acquired or borrowed what and when. Most states are not community property states.
Complaint. The divorce itself. Divorces are a type of lawsuit; complaint means that one person is suing the other to end the marriage. In some states it matters who is the petitioner and who is the respondent; in many states it doesn’t matter.
Contempt. Misbehaving in front of the judge, typically by refusing to answer a question, follow an order, or acting especially obnoxious.
Contingent Assets & Debts. Assets and debts that may happen. A common type of contingent asset is a business deal in the works. A common type of contingent debt is taxes owed.
Custodial Parent. The primary parent the child lives with. In rotating custody both parents are the custodial parent.
Custody. Where the children will live and under what circumstances they’ll visit the other parent.
Debts. Everything you owe whether it’s a formal debt or not.
Deposition. A question and answer session under oath and with a court reporter recording everything.
Discovery. The process where each party figures out what the other has and what their issues are. Unlike TV, by the time an issue reaches a hearing or trial surprises are extremely rare.
Dissolution. Fancy word for a divorce.
Domicile. Where you are or were, with the intent to stay: long business trips or vacations don’t count. This is important for deciding where your divorce can be filed and also, sometimes, for deciding how certain property should be treated.
Enforcement. Asking the court to enforce its prior order, usually after a divorce is final.
Equitable Distribution. For non community property states the process of divvying up the assets and debts. About as fun as a colonoscopy.
Equity. Fancy term for fairness.
Financial Affidavit. A form — usually signed under oath — where you list all your income, expenses, assets, debts … this allows each side to negotiate a fair deal.
Grounds for Divorce. The reason you’re splitting. Usually “irreconcilable differences.” In fault-based states the grounds for divorce can understandably be a wide and wild range of reasons.
Guardian Ad Litem. Literally an adult to stand in for and represent the interests of the child when the parents are bickering.
Hearing. A mini-trial, sometimes lasting only a few minutes, where a judge decides a part of a case.
Indirect Criminal Contempt. Not following a court order, on matters that are not civil contempt, out of sight of the judge. The most common is failure to honor a restraining order.
Judgment. The final order of the Court. In contested cases this is who wins and loses; in uncontested cases it just ratifies (makes legal) the agreement the couple have come up so that it’s enforceable.
Jurisdiction. A concept whereby a court is allowed to hear your case.
Legal Custody. Which parent can make decisions for the child. This is often shared. Called Decision Making Authority in some states.
Magistrate. Mini-judge. It’s tough and expensive to become a judge so many states have people who act like judges but whose decisions are subject to review by full judges. Some states force couples to use magistrates; in others they’re voluntary.
Mediation. A process where a neutral third party tries to get the parties to agree. Mediation cannot force somebody to agree to something though they can nudge and provide perspective.
Motion. Asking the court to do something.
No-Fault divorce. An option in every state except New York (those New Yorkers love their fights) where the parties essentially say the marriage just didn’t work out rather than bicker over who caused the marriage to fall apart. Some states essentially only allow no-fault divorce, though the issue of fault can come up when deciding custody issues.
Order. Just what it sounds like; the court is ordering somebody to do something. Decisions are typically called orders.
Petitioner. The person asking for the divorce. Realistically this usually doesn’t matter. Most modern pleadings use the term husband or wife, or former husband and former wife for post-marital spats.
Pleading. Basically a paper submitted to the court. It could ask a judge to do something, alert the judge to something, or just serve as a record that you’ve alerted the other side that you’ve done something.
Pro Se Litigant. A person representing themselves without a lawyer. Over half of family cases do not use lawyers.
Reconciliation. Changing your mind and getting back together. Actually happens a lot more than anybody would guess.
Respondent. The person who isn’t the petitioner. See petitioner for a better explanation.
Restraining Order. An order to not do something; to not call, to stay away, to stop bad-mouthing a parent in front of a child.
Rotating Custody. A shared custody arrangement where the child lives equal time with both parents. This may seem counter-intuitive but many child psychologists say it works best for the child.
Separation. Typically living apart though in many states a more formal mini-divorce. Rules of separation vary widely state-by-state.
Settlement. Using the terminology of one of the brighter judges “a blessing” when they occur in family court. A process where the couple makes an agreement without the judge deciding.
Summons. A demand to either show up or file something with the Court.
Trial. Think the second half of Law & Order, but without a jury.
Uncontested Dissolution. The couple has agreed not to fight; usually they create some form of Marital Settlement Agreement.