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Friday, November 03, 2006

The Essential Glossary of Terms Used by Lawyers and Judges

ACTION The legal term for a Lawsuit.

ADJUSTED GROSS INCOME In the case of an individual “gross income” minus the deductions listed in Internal Revenue Code 62. See Gross Income.

ADULTERY The commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant. See "deviate sexual intercourse.”

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 that may be raised in response to a spouse's pleading, even if the allegations of the Complaint were true.

AGE OF MAJORITY The age, usually, defined by statute as 18 years, at which a person attains full legal rights, especially, civil and political rights such as the right to vote.

AGREEMENT A transcribed or written resolution of disputed issues signed by the parties to the dispute. The same as a contract.

ALLEGATION A statement of fact contained in a pleading, affidavit or other writing setting forth what the person who made the statement claims and ultimately intends to prove to the court.

ANCILLARY RELIEF A request for relief other than a divorce, separation or dissolution of a marriage, which does not require that a cause of action to be pleaded. Ancillary relief can be alimony, maintenance, child support, counsel fees, expert fees, exclusive occupancy of the marital residence, special relief and equitable distribution.

ANNULMENT A judgment of a court voiding a marriage. A man and woman must be legally capable of entering into a valid marriage. If the parties are under a disability which may invalidate the marriage it can be annulled, that is, it can be avoided.

ALIMONY Court ordered payments for the support of a spouse or former spouse, payable during the lifetime of the payer, until the death or remarriage of the recipient spouse.

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 allegations.

ANSWERING AFFIDAVIT An affidavit which is served in response to a notice of motion or order to show cause and supporting affidavit(s), which admits, denies or responds to its allegations. Same as answering affirmation.

APPEAL The process where a court reviews the proceedings resulting in an Order or Judgment of a lower Court and determines whether the decision of the lower court should be reversed or modified.

APPEARANCE The formal submission by a Defendant to the jurisdiction of the Court, by serving a notice of appearance, after having been served with a Summons. Appearance also refers to the physical presence of a party at Court.

BARGAIN AND SALE DEED. A deed that conveys property to a buyer for valuable consideration but lacks any guarantee from the seller about the validity of the title.

BARGAIN AND SALE DEED WITH COVENANT AGAINST GRANTORS ACTS A deed that conveys property to a buyer for valuable consideration and contains a guarantee from the seller than he has done nothing to encumber the title.

BASIC CHILD SUPPORT OBLIGATION Defined in the New York Domestic Relations Law and in the New York Family Court Act as " The sum derived by adding the amounts determined by the application of Subparagraphs Two and Three of Paragraph (c) of this Subdivision except as increased pursuant to Subparagraphs Four, Five, Six and Seven of such Paragraph." Obviously, this means nothing to you. See Settlement Considerations: Child Support.

BIGAMY Entering into a marriage to someone who is already married and whose marriage was not terminated or dissolved. A bigamous marriage is void.

BILATERAL Affecting or obligating both parties. A bilateral contract.

BITCH A word used by disgruntled husbands to describe their former wife to be.
See also “Whore”.

BURDEN OF GOING FORWARD A party's obligation to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against that party in a peremptory ruling such as a summary judgment or a directed verdict.

BURDEN OF PROOF Method to instruct the factfinder concerning the degree of confidence our society thinks he/she should have in the correctness of his factual conclusions for a determination and to allocate the risk of making an error. Indicates the relative importance attached by society to the ultimate decision. In a typical civil case involving a monetary dispute between private parties, society has a minimal concern with the outcome of private suits, and plaintiff's burden of proof is a mere preponderance of the evidence. The parties to the lawsuit share the risk of error in roughly equal fashion. In a criminal case the interests of the defendant are of such
magnitude that they are protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. Society imposes almost the entire risk of error upon itself, by requiring that the state prove the guilt of an accused beyond a reasonable doubt. The intermediate standard, is by "clear and convincing evidence," which is used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant, where the interests at stake are more substantial than mere loss of money. In New York the preponderance of the evidence standard is utilized in most matrimonial actions and family court proceedings. The clear and convincing evidence standard is used in those cases where the issue is adultery; fraud; to establish paternity; to establish an acknowledgment of paternity; to terminate parental rights and establish the grounds for appointment of a guardian under New York Social Services Law § 384-b; to establish, in a civil proceeding to punish for civil contempt, violation of an order or subpoena.

CAUSE OF ACTION The legal circumstances which must be pleaded and proven before a divorce, separation, annulment, dissolution or other non-ancillary relief can be granted. See ancillary relief.

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 payer spouse).

CHILD SUPPORT STANDARDS ACT (“CSSA”) The New York child support law, found in New York Domestic Relations Law, section 240 (1-b) and New York Family Court Act, section 413 (1)(b) which governs with regard to awards of child support and agreements for child support.

CLAIM A charge by one spouse against the other.

COLLATERAL ESTOPPEL. An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one.

COMMON LAW The body of law based on the English legal system, as distinct from a civil-law system. The body of law derived from judicial decisions, rather than from statutes or constitutions.

COMMON LAW MARRIAGE A marriage, which is consummated without the benefit of a ceremony performed by a licensed marriage performer, by a man and a woman, who intend to be married, hold themselves out as husband and wife, are competent to marry. All of the states are required by the “Full Faith and Credit clause of the United States Constitution to recognize common law marriages validly entered into in other jurisdictions. The common-law marriage jurisdictions are Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. Each jurisdiction has its own law as to what must be done by a man and a woman to enter into a common law marriage. For example, in Georgia there must be a mutual agreement to be husband and wife, by parties able to contract, followed by cohabitation. In Pennsylvania a “common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created. When applicable, the party claiming a common law marriage who proves constant cohabitation and a reputation of marriage "which is not partial or divided but is broad and general," raises the rebuttable presumption of marriage. This rebuttable presumption does not apply when both parties are alive and able to testify regarding the formation of the marriage contract.

COMMUNITY PROPERTY Property which is owned in common by a husband and wife because it was acquired during their marriage by means other than an inheritance or gift to one spouse. Each spouse holds a one half interest in the property. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington and Wisconsin are community property jurisdictions.

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 by continuing to have sex with the adulterer. Forgiveness. An affirmative defense to a divorce on the grounds of Adultery.

CONNIVANCE Procurement. An affirmative defense to a divorce on the grounds of Adultery. Even though the adultery of the defendant is established, a divorce may not be granted to the plaintiff if the adultery was committed by the procurement or with the connivance of the plaintiff. "Connivance" has been defined to be the corrupt consenting of a married person to the adultery of his spouse for which that party afterward seeks a divorce. Where a spouse has conspired with another person to have that person commit adultery with his wife, that spouse connives at such adultery. Where a spouse employs detectives or agents for the express purpose of committing adultery with the other spouse, there is a corrupt consent and a connivance at the adultery.

CONTEMPT OF COURT The willful and intentional failure to comply with a Court Order or Judgment. Contempt of Court is punishable by fine or imprisonment, or both.

CONTESTED CASE Any case where the Court must decide one or more issues that are not agreed upon by the parties. Cases are considered contested until all issues have been agreed upon.

COTENANCY A tenancy with two or more co-owners who have unity of possession. Examples are a joint tenancy and a tenancy in common. See Tenancy.

COURT Word commonly used by lawyers to refer to a judge. Also a building where cases are heard and decided by judges and/or juries.

COVENANT A formal agreement or promise, usually, in a contract.

CPLR Abbreviation for the New York Civil Practice Law and Rules, a statute which governs civil practice in the courts.

CROSS-EXAMINATION The questioning of a witness presented by the opposing party at a trial, hearing or at a deposition, to test the truth of that testimony or to develop it further.

CUSTODY The sum of the rights and obligations with respect to the upbringing of the child. “Sole custody”, which encompasses this sum, includes the right to have physical custody of the child, to the exclusion of all others, and to make all decisions regarding the health, education, welfare and religion of the child. "Joint legal custody," sometimes referred to as "divided" custody or "joint decision making," gives both parents a shared responsibility for and control of a child's upbringing. It may include an arrangement between the parents whereby they alternate physical custody of the child. Where there is "joint physical custody," the child lives alternatively with both parents. The daily child-rearing decisions are usually made by the parent with whom the child is then living, while the major decisions, such as those involving religion, education, medical care, discipline, or choice of school/camp, are jointly made.

DECREE A word which was used to describe the final ruling of the judge in an action for divorce, legal separation, or annulment. Same as Judgment.

DEED A written document instrument by which land is conveyed or transferred.

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 trial or hearing.

DEFENDANT The one who defends the lawsuit brought by his/her spouse.

DEPENDANT COVENANT A covenant that depends on a party's prior performance of some act or condition. Until the performance of the act or condition, the other party does not have to perform his/her obligation.

DEPOSITION UPON ORAL QUESTIONS The testimony of a witness taken before a notary public, under oath, in response to questions by an attorney, 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 a trial or hearing. 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. Commonly referred to by lawyers and judges as an “EBT” (examination before trial).

DEPOSITION UPON WRITTEN QUESTIONS The testimony of a witness taken before a notary public, under oath, in response to written questions, submitted by the attorneys and answered in writing.

DIRECT EXAMINATION The initial questioning of a witness at a trial, hearing or deposition, by the attorney who called the witness to the stand to testify.

DIRECTED VERDICT A judgment entered on the order of a trial judge who takes over the fact-finding role of the jury because the evidence is so compelling that only one decision can reasonably follow or because it fails to establish a prima facie case. See verdict.

DEVIATE SEXUAL INTERCOURSE Sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.

DISCLOSURE Procedures followed by attorneys, usually permitted before a trial or hearing, 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, notices to admit, notices to permit entry upon real property and notices to produce various documentation relating to issues which are decided in the case. Psychological examinations, blood tests, forensic examinations 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 Tax free payments payable to either spouse, in a lump sum or over a period of time in fixed amounts, which the parties agree to in a valid agreement between the parties or which are awarded by the Court. These payments are made in lieu of or to supplement or facilitate or effectuate the division or distribution of property in a matrimonial action.

DRL Abbreviation for the New York Domestic Relations Law, a statute which governs matrimonial actions and adoptions.

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 if of employable age and refusing to adhere to reasonable parental authority and control, or entering the armed services. Emancipation ends a parent’s duty to support his child, unless there is an agreement providing otherwise. A child who becomes emancipated upon entering the armed services becomes unemancipated if he or she returns to his parents home upon discharge from the armed services. In some states children are emancipated upon reaching the age of 18.

EPTL Abbreviation for the New York Estates Powers and Trusts Law, a statute which governs inheritances and wills

EQUITABLE Just. Conformable to principles of justice and right. Existing in equity. Available or sustainable by an action in equity, or under the rules and principles of equity.

EQUITABLE DISTRIBUTION LAW (“EDL”). The term given to the several laws enacted in New York in 1980 which adopted rules for awards of maintenance and the distribution of property upon the dissolution of a marriage, changing the then existing alimony and common law property distribution laws of New York.

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 the length of the marriage, relative financial contributions of the parties, 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.

EQUITY The system of law originating in the English Court of Chancery and superseding the common law and statute law when the two conflict.

EVIDENCE Documents, testimony or other material offered to the Court to prove or disprove allegations in the pleadings or in dispute.

EXECUTION A mandate issued by or on behalf of the court directing the sheriff to take possession of money, wages or property owned by a person or entity, and sell or otherwise liquidate it in order to satisfy a judgment entered against that person or entity.

EX PARTE An application made to a court by a party for relief without the other party having notice or being present, due either to a lack of notice or choice of the other party not to appear. An Order to Show Cause is an ex parte application to a court for relief and is permissible. However, ex parte communications with the court are a violation of the Canons of Ethics.

FCA An abbreviation for the New York Family Court Act, a statute which governs practice in the Family Court, a court of limited jurisdiction.

FOUNDATION The evidence that must be presented to the court before asking certain questions or offering documentary evidence on trial or at a hearing.

GROSS INCOME Defined in Internal Revenue Code 61 as all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, fringe benefits, and similar items; (2) Gross income derived from business; (3) Gains derived from dealings in property; (4) Interest; (5) Rents; (6) Royalties; (7) Dividends; (8) Alimony and separate maintenance payments; (9) Annuities; (10) Income from life insurance and endowment contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Income in respect of a decedent; and (15) Income from an interest in an estate or trust.

GROUNDS FOR DIVORCE The legal circumstances which must be pleaded and proven before a divorce can be granted. Also called a "Cause of Action."

HAGUE CONVENTION The Convention on the Civil Aspects of International Abduction of Children adopted at the Hague on October 25, 1980. It provides for a quick federal or state court proceeding, not on the merits of the custody dispute, for the return of a child wrongfully removed or wrongfully detained from his “habitual residence”.

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 spouse from any loss or expense in connection with it.

HOSTILE WITNESS A witness who demonstrates so much prejudice during direct examination that the party who has called him to testify is allowed to cross-examine him. 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) for the parties 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.

ICARA The International Child Abduction Remedies Act, 42 U.S.C. 11601, et seq.
which contains the implementing legislation for enforcing rights under the Hague Convention on the Civil Aspects of International Child Abduction. See Hague Convention.

INFANT A person under the age of twenty-one years.

IMPEACHMENT The act of proving that a witness is lying.

IMPUTED INCOME A finding by a court that is awarding maintenance or child support, that a parent or party has income or is capable of earning income, which he/she does not really have or does not really earn. The court may attribute income to that person from any resource available, such as non-income-producing assets; meals, lodging, memberships, automobiles, or other job benefits that are for personal use or personal economic benefit; fringe benefits from employment; and money, goods, or services provided by relatives and friends. It may also attribute income based on the persons education, earning capacity, former resources or income if it finds that the person has intentionally reduced resources or income or become unemployed in order to reduce or avoid his/her obligation for support.

IN CAMERA Out of the presence of the jury.

IN CAMERA INTERVIEW Interview of the child made on the record before a court reporter, by the judge, in a contested custody case. Usually held in the judges chambers. Sometimes the lawyers and law guardian are present when the child is questioned.

INCEST A marriage between spouses very closely related by blood. An marriage between ancestor and descendant, brother and sister, uncle and niece or aunt and nephew is incestuous and void.

INCOME Income is defined for purposes of awarding child support as gross (total) income as should have been or should be reported in the most recent federal income tax return.

INDEMNIFICATION To promise to reimburse another person in case of an anticipated loss. The same as Hold-Harmless.

INDEPENDENT COVENANT A covenant that does not depend on a party's prior performance of some act or condition.

IN ISSUE In dispute.

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).

INTERLOCUTORY Interim or temporary. Not a final resolution of the whole dispute or controversy.

IRC Abbreviation for the Internal Revenue Code, the law which requires us to pay
federal income tax, as well as other taxes

INTERROGATORIES A series of written questions served upon the opposing party in a lawsuit in order to discover certain facts regarding the disputed issues in the action. The answers to Interrogatories must be made in writing and signed, under oath, and served within a prescribed period of time.

IRREBUTTABLE OR CONCLUSIVE PRESUMPTION A presumption that cannot be overcome by any additional evidence or argument. See presumption.

JOINT PROPERTY Property held in the name of more than one person.

JOINT TENANCY (WITH RIGHT OF SURVIVORSHIP) A tenancy with two or more co-owners who take identical interests simultaneously by the same instrument and with the same right of possession. A joint tenancy differs from a tenancy in common because each joint tenant has a right of survivorship to the other's share (in some states). See Tenancy.

JUDGE The person who will decide the issues in your case fairly. Canon 3 (B) (3) of the Code of Judicial Conduct provides that a “ A judge shall be patient, dignified and courteous to litigants...lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control”. Canon 3(B)(4) provides that a judge shall perform judicial duties without bias or prejudice against or in favor of any person.

JUDGMENT The determination of the rights of the parties in an action or special proceeding. It may be either interlocutory or final. A judgment refers to and states the result of the verdict or decision, or recites the default upon which it is based.

JUDGMENT-ROLL judgment roll. The papers and pleadings which are part of the record and must be filed with the judgment.

JUDICIAL NOTICE A court's acceptance, without requiring proof, of a well-known and indisputable fact.

JUDGMENT The Order of the Court determining the action. Same as Decree.

JURISDICTION IN PERSONAM (PERSONAL JURISDICTION) The power of the Court to make decisions which affects the parties, their children or their property.

JURY Six of your peers, who will decide the grounds for divorce if you do not trust the judge to decide your case fairly.

LACHES An equitable doctrine by which a court denies relief to a party who has unreasonably delayed in asserting his claim, when that delay has prejudiced the other party against whom relief is sought.

LAW GUARDIAN An attorney appointed by the judge, usually at your expense, to represent your child or children in a contested custody case (even though they are not parties to the case).

LEADING QUESTIONS Questions, which are asked of a party or witness who is testifying at a trial, hearing or deposition, that suggest the answer. For example, “Are you the plaintiff in this action?

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 judgment of separation does not dissolve the marriage, does not permit the parties to commit adultery and does not allow the parties to remarry. See Separation Action.

LEVERAGE FACTORS Particular considerations, based on the priorities of the parties, which induce them to settle disputed issues. The skillful use of these factors generally controls the successful outcome of a settlement.

MAINTENANCE Spousal support (deductible to the payer spouse and taxable as income to the recipient).

MARITAL PROPERTY Property which will be equitably distributed upon dissolution of the marriage. It includes all property acquired by either or both parties during the marriage, before the signing of a separation agreement, and before starting a matrimonial action. It does not matter how title to the property is held. Property acquired by gift from third parties or inheritance, and personal injury recoveries is not marital property.

MARRIAGE The legal union of a man and woman as husband and wife.

MATRIMONIAL ACTION A lawsuit for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage, for a declaration of the validity or nullity of a marriage, and proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.

MERGER The effect that a judgment has which absorbs an agreement into the judgment, so that the parties rights are limited to enforcing the judgment.

MAJORITY The status of one who has attained the age of majority (usually 18).

MISTRIAL A trial or hearing that ends before both sides have rested, due to the occurrence of some fundamental error that would render the trial or hearing invalid. Following a mistrial, the case must be tried again from the beginning.

MONEY JUDGMENT A judgment for a sum of money or directing the payment of a sum of money upon which execution is granted.

MOTION A written or oral application to the court for some particular relief, such as temporary support, an injunction, a temporary restraining order, an order compelling disclosure, or for attorney's fees, which must be made upon advance written notice of motion to the other party. A motion may also be made by Order to Show Cause.

NO-FAULT DIVORCE A marriage-dissolution system whereby divorce is granted without the necessity of one of the parties being guilty of marital misconduct.

NO GOOD SON OF A BITCH Word commonly used by angry former wife to describe ex-husband who is late in making alimony, child support or other financial payments. Sometimes referred to as dead beat dad, dead beat husband, cheat, loser or slime.

NOTICE OF ENTRY A Notice that is served upon a party that a judgment or order has been made and entered in the records of the clerk of the court, and the date that it was entered.

NOTICE OF MOTION A written which is served upon the other attorney or spouse telling them that on a certain day a motion will be made to the court for certain relief. The notice must indicate the date and place the motion is going to be made and contain copies of the affidavits, affirmations, papers and documents upon which the motion is being made.

NOTICE OF SETTLEMENT A notice telling the other attorney the date, time, place and name of the judge whom we are submitting an order or judgment for signature.

OPTING OUT AGREEMENT An Agreement made before or during marriage providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution, in the event of the dissolution of their marriage. See Settlement Agreement and Property Settlement Agreement.

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 Clerk of the Court.

PARENS PATRIAE The Court in its capacity as a protector of children and other persons who are not able to care for themselves.

PAROL-EVIDENCE RULE The principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by oral evidence that adds to, varies, or contradicts the writing. This rule usually prevents a party from introducing, at a trial or hearing, outside evidence of negotiations that occurred before or while the agreement was being negotiated and reduced to its final written form. According to this rule evidence is not admissible to contradict or qualify a complete written contract.

PERFECTING AN APPEAL An Appeal is "perfected" when all of the required papers, such as the record or appendix and the appellants brief are filed with the Appellate Court.

PETITION A formal written request presented to a court. A pleading in a special proceeding.

PKPA The Parental Kidnaping Prevention Act, enacted by the Federal government to address interstate custody problems that continued to exist after the adoption of the Uniform Child Custody Jurisdiction Act. The Parental Kidnaping Prevention Act mandates that state authorities give full faith and credit to other States’ custody determinations, so long as those determinations were made in conformity with the provisions of the Parental Kidnaping Prevention Act. The Parental Kidnaping Prevention Act provisions regarding bases for jurisdiction, restrictions on modifications, preclusion of simultaneous proceedings, and notice requirements are similar to those in the Uniform Child Custody Jurisdiction Act. However, there are some significant differences.

PLAINTIFF The party who files the Lawsuit.

PLEADING A formal written application to the Court for relief and the written response to it. The Pleadings are the complaint, answer, counterclaim, and reply.

POVERTY INCOME GUIDELINES FOR A SINGLE PERSON Poverty income guidelines published annually by the Federal Department of Health and Human Services.

PRAYER That portion of a pleading, at the end, which specifies the relief that is requested of the Court.

PRIMA FACIE Latin for “on its face”. On first appearance but subject to further evidence. After the plaintiff rested the court denied the motion to dismiss because the plaintiff established a prima facie case for divorce.

PRESUMPTION A legal inference or assumption that a fact exists, based on the existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of going forward to the opposing party, who can then attempt to overcome the presumption.

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.

PROPERTY A thing of value. Property can be anything of value, including education, an educational degree or certificate, a license to practice a profession or trade, or work experience which enhances the earning potential of a spouse. For example, an interest in a profession or a professional career potential is marital property subject to equitable distribution.

PROPERTY SETTLEMENT AGREEMENT The settlement reduced to a written document. An Agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Stipulation of Settlement and Property Settlement Agreement.

PURSUANT TO In compliance with, in accordance with, as authorized by or under.

QUALIFIED DOMESTIC RELATIONS ORDER A judgment or order, that creates or recognizes the right of a spouse or child to receive all or a portion of the retirement benefits for which the other spouse is eligible under a retirement or profit sharing plan. Usually referred as a QDRO (pronounced quad-dro)

QUALIFIED MEDICAL CHILD SUPPORT ORDER A child support judgment or order, including an order approving a settlement agreement, that creates or recognizes the existence of an parents rights to receive benefits for which the other parent is eligible under a group health plan.

QUITCLAIM DEED A deed that conveys the owner's complete interest or claim in certain real property but that neither warrants nor professes that the title is valid.

REBUT To refute, oppose, or counteract (something) by evidence, argument, or contrary proof.

REBUTTABLE PRESUMPTION An inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence. See Presumption.

REBUTTAL The introduction of evidence at a trial or hearing that is in response to new matter raised by the Defendant at an earlier stage of the trial or hearing.

RECRIMINATION An affirmative defense to a divorce on the grounds of Adultery. The plaintiff is not entitled to a divorce even though the adultery of the defendant is established, where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.

RECUSAL Disqualification of a judge from a case. Canon 3(E)(1) of the Code of Judicial Conduct provides that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) (i) the judge has a personal bias or prejudice concerning a party or (ii) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge knows that (i) the judge served as a lawyer in the matter in controversy, or (ii) a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or (iii) the judge has been a material witness concerning it; (c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding; (d) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding; (ii) is an officer, director or trustee of a party; (iii) has an interest that could be substantially affected by the proceeding; (iv) is likely to be a material witness in the proceeding; (e) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding. (f) Notwithstanding the provisions of subparagraphs (c) and (d) above, if a judge would be disqualified because of the appearance or discovery, after the matter was assigned to the judge, that the judge individually or as a fiduciary, the judge's spouse, or a minor child residing in his or her household has an economic interest in a party to the proceeding, disqualification is not required if the judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

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. See Ancillary relief.

REPLY The pleading filed in answer to the allegations of a Counterclaim.

REPLY AFFIDAVIT An affidavit that is filed in further support of a motion and in response to the allegations of an answering affidavit. Same as Reply Affirmation.

RES JUDICATA An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been, but was not, raised in the first lawsuit. The three essential elements are (1) an earlier decision on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties.

RULES OF EVIDENCE The rules that govern the method of presentation and admissibility of oral and documentary evidence at trials, hearings or depositions.

RULING The Court's determination on an objection or offer of evidence made during a trial or hearing. A ruling is no reduced to writing or signed by the judge.

SELF SUPPORT RESERVE 35% of the poverty income guideline amount for a single person as reported by the Federal Department of Health and Human Services for the last calendar year.

SEPARATE PROPERTY A term used to describe property that a spouse is entitled to keep, which will not be equitably distributed after a marriage is dissolved. It includes property acquired by a spouse before marriage; property acquired by bequest, devise, descent or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property; and property described as separate property in a written agreement of the parties. This definition is subject to certain exceptions.

SEPARATION ACTION An action for a judgment of separation, separating the husband and wife forever, or for a limited period of time. Actions for legal separation must be based upon the fault grounds of cruel and inhuman treatment, adultery, abandonment, 3 years imprisonment and non-support. The court may provide in the judgement for maintenance, child custody, and support, but can not provide for Equitable Distribution of marital property. A judgment of separation does not dissolve the marriage, does not permit the parties to commit adultery and does not allow the parties to remarry.

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. An Agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Stipulation of Settlement and Property Settlement Agreement.

SHOW CAUSE ORDER (Same as Order to Show Cause) A 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. See Notice of Motion

STIPULATION OF SETTLEMENT The settlement dictated on the record in open court and reduced to a written document by the court reporter. Essentially the same as an agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Settlement Agreement and Property Settlement Agreement.

SPECIAL RELIEF A direction made in a matrimonial action to a spouse to maintain life, health, accident, medical and dental insurance for his spouse and/or children.

STARE DECISIS The doctrine of precedent which requires a court to follow earlier judicial decisions when the same points arise again in a lawsuit.

STATUS QUO The existing state of things; leaving things as they are without modification or alteration. "Things" can be anything from support and visitation arrangements to property rights.

STATUTE A law passed by a legislative body.

STATUTE OF LIMITATIONS A statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the adultery occurred or was discovered). A statute establishing a time limit for prosecuting a crime, based on the date when the offense occurred.

STIPULATION An Agreement made between the parties to a lawsuit, or their attorneys, either in writing or on the record in open court.

SUBPOENA A mandate issued by the court, or on behalf of the court, by an attorney, which is served upon a person or corporation, who is the “witness”. A subpoena requires the witness to appear, give testimony and/or produce documents or things at a deposition, trial or 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 a fine or imprisonment, or both, as punishment by the Court for contempt of court.

SUI JURIS Of full age and capacity.

SUMMARY JUDGMENT A judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law.

SUMMONS A written notice to the Defendant that an action has been commenced against him or her by the filing of a summons or summons and complaint, and requiring that the Defendant appear within a specific period of time to by serving notice of appearance or an answer to the Complaint.

SUR-REBUTTAL Testimony offered by the Defendant to counter any new matter contained in the rebuttal testimony offered by the Plaintiff.

TAKING AN APPEAL 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 with Notice of Entry.

TEMPORARY OR PENDENTE LITE MOTIONS Applications to the Court for interim relief pending the final judgment 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.

TENANCY The possession or occupancy of real estate by right or title. The period of such possession or occupancy.

TENANCY BY THE ENTIRETY A joint tenancy that arises between husband and wife when a deed or will conveys realty to both of them, as husband and wife. Each spouse has an undivided interest in the whole property and a right of survivorship. This type of tenancy exists in only a few states. A tenant by the entirety may not destroy the other spouse's right of survivorship by transferring his or her interest to another. The husband and wife may together convey their estate to a third person or mortgage it, but a mortgage or conveyance by one spouse to a third person only conveys the right to take the property if that spouse survives the death of the other. If they both wish to convert their tenancy into a tenancy in common or a joint tenancy, they may do so. Upon the death of either husband or wife the survivor automatically acquires title to the share of the deceased spouse. See Tenancy.

TENANCY IN COMMON A tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship. Each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel. See Tenancy.

TESTIMONY Statements made under oath by a witness in a Court hearing, trial or deposition.

TRIAL A formal Court hearing to decide disputed issues raised by the pleadings.

UCCJA The Uniform Child Custody Jurisdiction Act (UCCJA), which was the former Article 5-A of the New York Domestic Relations Law, repealed on April 28, 2002.

UCCJEA The Uniform Child Custody Jurisdiction and Enforcement Act which became effective in New York on April 28, 2002 as Article 5-A of the New York Domestic Relations Law. The Uniform child Custody Jurisdiction and Enforcement Act revises the law on child custody jurisdiction in light of the Parental Kidnaping Prevention Act, (PKPA), which contains provisions which are inconsistent with the Uniform Child Custody Jurisdiction Act, and the Violence Against Women Act (VAWA). The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act is to revise the Uniform Child Custody Jurisdiction Act to bring the Uniform Child Custody Jurisdiction Act into compliance with the Parental Kidnaping Prevention Act and other federal statutes such as the Violence Against Women Act, as well as to make those changes to the Uniform Child Custody Jurisdiction Act which are necessary as a consequence of inconsistent court interpretations.

VACATED When a Court order or judgment is erroneous, it is eliminated, usually by the court, after a motion is made on notice, or by an appellate court.

VERDICT A jury's finding or decision on the factual issues of a case. In a nonjury trial, a judge's decision on the issues of a case.

VERIFICATION A pleading or affidavit made under oath and signed before a notary public.

VISITATION A limited form of custody. See Custody.

WARRANTY DEED A deed containing one or more covenants of title, especially a deed that expressly guarantees the grantor's good, clear title and that contains covenants concerning the quality of title.

WITNESS A person who gives testimony, usually under oath, at a trial, hearing or deposition. Children may testify although not under oath.

WRIT OF HABEAS CORPUS An order which must be signed by a judge (called a “writ”) directing the person who is confining another person, to bring that person before the court, to determine if the detained party's imprisonment or detention is not illegal. In addition to being used to test the legality of an arrest or commitment, the writ is a procedural device that is used to obtain a custody or visitation determination. The writ may be served on any day of the week.


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