Getting divorced is hard enough; the legalities that come along with it can make a difficult situation even harder. Perhaps the most complicated part of the paperwork part of the legal process of divorce is the language used. While legal jargon might be second nature to lawyers, for the average person, divorce legalese can be dizzying. Further, sometimes it seems the Judge or an attorney is making a big deal about a word or about specific language that seems the same to you either way. You aren’t sure what the fuss is all about. The legalese can be confusing.
Divorce Legalese: Legal Terms Your Lawyer Will Use
If you and your spouse have decided to part ways, to help make the process a little bit easier for you, the following is an overview of some of the more common legal terms in a divorce, including their meanings, that you should be aware of. You might be surprised that some of the terms don’t actually mean what you thought they did.
What is Legalese?
Legalese is the special language used by the legal profession and seen in legal documents. Many of these terms are words not otherwise used by the general public or are words that may have a specific meaning in the legal document that would not be assumed by a non-legal person.
Some of the terms that are used in legalese are based on Latin; hence why they can be very difficult to understand. Lawyers, attorneys, paralegals, and other individuals who work in the legal profession use this jargon. They use it not because they think it sounds cool or because they think it makes them sound smarter. Rather, they use these terms because it provides consistency and has a specific meaning in the legal context.
Important Divorce Legal Terms to Know
Now that you have a basic understanding of what legalese is and why it is used, let’s jump in and define some of the more common legal terms that are associated with divorce. Without further ado, here’s an overview of some of the terms that you may see in legal documents or hear from legal professionals – including judges if your case ends up going to court – if you are getting a divorce.
Should vs. Shall
In an everyday conversation, you might not think too much about whether you use the word “should” or “shall” in a sentence. Asking a friend, “should I pick you up at 6” might have basically the same meaning to you as asking “shall I pick you up at 6.” In the legal world, “should” and “shall” have very different meanings and can make or break your case if there is later a dispute. In many contexts, using the term “should” is a permissible and more flexible term. Using the term “shall” is like saying “must.”
For example, in the divorce context, a parent might be required to provide a receipt within 30 days to request partial reimbursement for the school supplies costs for the children. If the language states the parent “should” provide the receipt within thirty days, the parent may not have any issues being entitled to the reimbursement even if they submit the receipt a few days after the 30 days. On the other hand, if the language states the parent “shall” provide the receipt within 30 days, the Court may likely interpret this to mean the parent “must” provide the receipt within 30 days. The Court could then agree with the other parent if the other parent denies paying the reimbursement due to the receipt not being provided within the 30-day time limit. Although “should v. shall” may not seem like a big difference to a layperson, the specific language in the divorce decree could really affect whether the parent receives or is denied the large reimbursement if they are just a few days late in providing a receipt.
The difference between “should v. shall” is just an example of one of the many ways the legal terms can cause a person who proceeds without an attorney to not really understand what they are signing. A person may assume the terms used have their normal meaning and don’t understand that the Court is going to interpret the words in a special way if there is ever a dispute.
In a divorce, things are supposed to be equitable. Sometimes people think this means equal and thus things should be split 50/50. Equitable doesn’t mean equal in a legal context. Equitable means “fair.” An “equitable” division of property might be very different from a 50/50 equal split if the Court thinks a 50/50 split is not fair in a specific situation.
Dissolution and Dissolved
We usually talk about getting a “divorce.” However, technically we are “dissolving” the marriage. Thus, when you see terms about “dissolution” and “dissolved” in a divorce context, you are usually just talking about getting divorced.
The Complaint (or in some Courts called a Petition) is the document that starts your divorce action. It is your request and it is not a court order. Many of the paragraphs in the Complaint are required and you may ask for more in your Complaint than you realistically expect the Court to give if you take the case to trial or for the other party to ever agree to. This document generally gives the Court and the other party general “notice” as to what you could ask for in the divorce or what you may ask for if the case goes to trial. The Complaint generally isn’t required to include much in the way of specific details as to what you would ultimately like to be awarded in the divorce action. It just must give general notice to the other party of your requests and include the required language to start a divorce action. Many of the paragraphs are standard or formulaic.
In order to move forward with a divorce action, you have to “serve” the other party with the divorce action. Unless the other party will sign a document to waive this service, the Complaint usually has to be served by having the sheriff (or in some cases a process server) hand the Complaint to the other party. A document signed by the sheriff is then filed with the Court stating the date that the other party was “served” with the Complaint. The Court may give permission to perform service other than by sheriff. For example, if the location of the other party is unknown, the Court may allow the Complaint to be served in an alternative manner, such as by publishing notice of the divorce action in the newspaper.
Once the Complaint has been served, there may be other documents you file within the court case that has to be “served” on the other party. For example, motions and notices of hearing that are filed have to be “served” on the other party to give the other party notice of the upcoming motion and hearing. However, the Court rules don’t usually require that these subsequent filings be served by the sheriff. Depending on the situation, you may be able to serve these documents by mail, e-mail, or another form of electronic service. Sometimes people think they don’t have to show up at a hearing if the document wasn’t “served” by the sheriff. This can be a costly mistake.
The Complaint is what starts the divorce action and includes the party’s requests. The divorce decree is what ends the divorce action. Unlike the Complaint, the divorce decree is a court order. The divorce decree is what finalizes the divorce action and includes the specific terms of the divorce that the parties are legally obligated to follow. This divorce decree (sometimes called a decree of dissolution of marriage) sets forth the specifics as to who is awarded what specific property and who is responsible for what specific debt. It also includes the terms regarding custody, parenting time, and child support. Sometimes the divorce decree is actually multiple documents attached together.
For example, if you reached an agreement on property issues, the settlement agreement stating forth the property issues might be a document that is attached to and becomes part of your divorce decree. If you have children together, the parenting plan and child support calculation might also be documents that are attached to and become part of your divorce decree. Because of this, it is not uncommon for your divorce decree to be 20-30 pages or more.
This term is more widely known, but it can be confusing depending on the context. If the Judge says the parties don’t have any “real property” to divide, this just means that the parties don’t own any real estate.
Transfer Incident to Divorce
You will often see this term in a divorce decree when there is a payment plan for one party to compensate the other for otherwise receiving a larger part of the marital estate. You more often see this language when the parties have a fairly large amount of assets to divide. Under the IRS tax rules, a person giving money can be taxed if they give larger sums of money to another person. One exception to this is certain transfers of money to help equalize the assets in a divorce. Because one party will continue to make payments to the other after the divorce is finalized, the divorce decree may have specific language so as to help prevent problems from the IRS claiming that “gift tax” applies to the subsequent transfer of funds. It may help clarify that these payments are under the exception rules as they are made under the “transfer incident to divorce” exception.
For more information about how your divorce proceeds can be taxed, see IRS publication 504. https://www.irs.gov/pub/irs-pdf/p504.pdf
The divorce decree may state that a party not only shall pay a debt but also “indemnify” the other party. Indemnify generally means to reimburse. For example, H is ordered to pay Credit Card Debt A. The divorce decree states that H must pay Credit Card Debt A, hold W harmless, and indemnify W. This means that if the creditor still comes after W and W has to pay Credit Card Debt A, then H must reimburse or “indemnify” W for the debt she had to pay that H was ordered to pay in the divorce decree.
Secured v. Unsecured
If you have a mortgage or a vehicle loan, you probably know what these terms mean. When a debt is tied to or “secured by” a certain asset, the debt is called a secured debt. For example, your mortgage is a secured debt secured by your house. If you don’t pay your mortgage, the bank can foreclose on your home and take your home to pay the debt. Your auto loan is a secured debt secured by your vehicle. Your vehicle can be repossessed if you don’t make payments on your vehicle loan. Other loans and credit card debts are generally unsecured debts as they aren’t tied to a specific asset to guarantee their payment. You will often see secured debts discussed separately from unsecured debts in a divorce proceeding.
A notary is a person that reviews your ID and verifies that the name you are using to sign a document matches who your ID states you are. A notary helps verify that a document signed by a person was actually signed by the person claiming to have signed it. The notary doesn’t verify whether any of the statements in the document are true. The notary only verifies the identification of the signer.
An affidavit is a document that is signed in front of a notary. It is often used in a divorce context for a person to write out what they know or have seen and then sign the document in front of a notary to swear that their statements within the document are true. For some types of hearings, the Court may require affidavits and not allow witness testimony. For things like a trial, usually, affidavits aren’t allowed and the witnesses must testify to their statements in person instead.
Discovery is a more fluid term. It doesn’t have a set meaning. Usually, you will do “discovery” as part of your divorce case. Discovery is generally the obtaining of documents and information as part of a court case. For example, in the divorce context, the discovery would likely include financial documents, such as financial statements, tax returns, and paystubs. It could also include answers to written questions such as where you work and what your normal work hours are.
If the parties are generally aware of all the assets and debts of the other party and are confident the other party is not hiding things, the parties may be able to exchange this information in a more informal manner to help keep the costs down and the process moving forward quickly. This would be called “informal” discovery.
If the case is more contested or there are genuine questions as to the assets and debts of the other party, then a more formal approach is often used. This more formal approach to discovery often includes answering written questions called Interrogatories and returning specific documents pursuant to a written Request for Production of Documents. The discovery process can also include things like expert witnesses, subpoenas, and depositions.
In some cases, the discovery process is simple and quick. In other cases, the discovery process is the most expensive part of the case and can take many months or even years to complete.
Want to know more about the discovery process for divorce in Nebraska? See the Nebraska Court Rules of Discovery: https://supremecourt.nebraska.gov/supreme-court-rules/chapter-6-trial-courts/article-3-nebraska-court-rules-discovery-civil-cases
A deposition is when a party or witness is asked questions by the other attorney under oath and has their answers recorded. The attorneys are present but the judge is not. Many of the questions that the attorney would not be allowed to ask at trial are still allowed at a deposition as the attorney can use the deposition to try to find out about more evidence that could then be the type of evidence allowed at trial. A deposition has a much wider “scope” than what is allowed as testimony at trial. Depositions are part of the discovery process but are not used in most divorce cases. They can be used to find out more information. Sometimes, they can be used to help settle a case as both parties may have a better idea of how well (or not) a party is likely to testify at trial and how strong (or not) their case will be at trial depending on how the witness does at the deposition.
Want to read more about depositions for divorces in Nebraska? See: https://supremecourt.nebraska.gov/supreme-court-rules/chapter-6-trial-courts/article-3-nebraska-court-rules-discovery-civil-cases/%C2%A7-6-330-depositions-upon-oral-examination
Sole Physical Custody/Primary Physical Custody
Often these terms are used interchangeably, but your Court may officially use one term or the other. Sometimes if a person hears that a parent has “sole” physical custody of a child they think that the other parent doesn’t have any rights or any time with that child. Even if you have sole physical custody of your child, this doesn’t mean that the other parent doesn’t also have rights or that the child doesn’t also have set parenting time each week with the other parent. This just means that the child primarily lives with one parent.
This means both parties agree. For example, if you both ultimately sign off on the divorce decree without going to trial, this could be called a “stipulated” divorce decree. You may also hear that the parties “stipulated” certain exhibits at trial. This means that both parties (through their attorneys) agreed that the judge can look at certain exhibits without further argument as to whether or not the Judge can “receive” or look at the exhibits when deciding the divorce action. When there is later a dispute, the Court may look at whether something was stipulated or not in deciding whether to change or enforce a divorce decree provision.
Especially for divorces involving children, the parties may be required by the Court to attempt mediation before the Court will be willing to decide the issues for the parties at a trial. For example, in Nebraska, the parents are generally required to first attempt mediation to try to work out a parenting time schedule on their own before the Court will decide on any remaining parenting time schedule disputes at a trial.
Mediation is usually in at least two sessions. The first session is usually a short, individual session where the mediator explains the process and the ground rules. The first session may often be just a phone call with the mediator. The second session is usually a joint session where both parties attend. Depending on the issues being mediated, the attorneys may or may not also attend the mediation. If the issues are not complex, such as how to divide up the holiday time, the parties will likely attend without attorneys. If the issues are complicated legal or financial matters, the attorneys may likely attend with their clients to help explain the options in mediation.
The mediator often plays a “devil’s advocate” to help each party see the other party’s side of the case or understand the strengths of the party’s case. The mediator may also bring up foreseeable issues or have solutions that the parties might not have thought of on their own. The mediator doesn’t make a decision for the parties but guides the discussion and records their agreements.
Arbitration is similar to mediation in that a neutral, third party is helping the parties to reach an agreement or resolution without a trial. However, the role of an arbitrator is often more like a judge. You can agree to be bound by the decision of the arbitrator and may be stuck with the ultimate result whether or not you agree with the arbitrator’s decision. Unlike a mediator, the arbitrator generally will make a decision on unresolved issues after hearing both sides. Whether you are bound to that decision or not depends on the type of arbitration you are doing.
Overruled v. Sustained
At trial or other hearings where witnesses testify, you will hear an attorney say “objection.” The attorney will object to the judge receiving certain testimony or evidence and argue that it shouldn’t be considered in deciding the divorce. In addition to stating “objection,” the attorney will state a basis or reason for their objection. If you are the witness on the stand when an objection is made, you have to stop talking while the judge decides whether to “overrule” or “sustain” the objection.
If the objection is “overruled,” then the judge didn’t agree with the objection and is including the testimony or evidence when deciding the divorce. If you were the witness on the stand, you would be allowed to answer the question.
If the objection is “sustained,” then the Judge agreed with the objection, and whatever was objected to won’t become part of the evidence of your case. You wouldn’t be able allowed to answer the question that was objected to.
If you are preparing to testify in a divorce case, don’t get worried about having to try to remember what overruled and sustained mean when you are on the witness stand. Judges know that these terms are hard to remember when you are already nervous sitting in the witness box. Most judges are good about saying something along the lines of “overruled, you can answer” or “sustained, next question” to help que the witness whether they should answer the question or not.
Did you learn a new term from this article? Were you surprised by the meaning of any of the terms above? Having an experienced divorce lawyer can help you focus on the emotional and financial aspects of the divorce and let your attorney worry about drafting the documents and explaining the legalese.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
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