Iris McKay

Affidavit

Written testimony, usually notarized signed under penalty of perjury. In family court in California, we use the term “Declaration” for written testimony. (Does not need to be notarized.)

Alimony

This term is not used in California. Payments made to support a current or former spouse are called spousal support.

Annulment

An order which nullifies a marriage, or declares that no marriage ever existed. Certain grounds must exist for the marriage to be annulled, such as fraud or incest.

Appeal

The procedure to ask a higher court to review the ruling of the family court if the judge has made an error in law.

Appraisal

A statement as to the value of an asset, if the value is not known. Typically in divorce actions, the parties will agree to use an objective ‘third party’ appraiser to value an asset, to avoid additional trial costs. Assets typically appraised are homes, professional practices, antiques, etc.

Appearance

Coming into court as a 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.

Arbitration

Submitting a disputed matter for decision to a person who is not a judge. The decision of an arbitrator is usually binding and final. Arbitrators are typically not used in family law.

Attorney at Law

An advocate or counsel employed to prepare, manage and try cases in court. Must be licensed by the state. Lawyer and attorney are usually synonymous.

Attorney’s Fees

The fees incurred by each spouse to go forward in the divorce action. In family court, the judge can order one party to contribute toward the other party’s fees if the necessary grounds exist.

Automatic Temporary Restraining Orders

The restraining orders on the back of the Summons which automatically attach to the Petitioner at the time the case is filed and attach to the Respondent at the time of service. They prevent the parties from taking their children out of the state of California and from encumbering and disposing of property.

Charging Lien

A lien that permits an attorney to assert a claim for fees against any property involved in the litigation, and prevents the sale or other disposition of that property until the fee issue has been resolved. In California, an attorney’s lien is called a FLAPRL (Family Law Real Property Lien.)

Child Support

Money paid by one parent to the other for the support of their children. In California, the amount is determined by the California Guideline formula. This algebraic formula computes the amount depending upon each parent’s gross income, tax filing status, timeshare with the children, medical and other deductions. By law, a judge making a child support order must follow the Guideline without deviation.

Common Law Marriage

A marriage without license or ceremony recognized by the law in the state it was created. Not recognized in California today.

Community property

Property and earnings acquired during the marriage by either spouse. Also called Marital Property. Different from jointly held property.

Contempt of Court

An order by a judge after a hearing which has determined a party failed to comply with a court order who was able to comply. The family court strongly discourages parties from filing Contempt charges against one another, especially in cases where children are involved.

Court file

Any pleadings or declarations filed in your case are kept in your court file at the Family Courthouse. Your file is a public record. Anyone knowing your name or your spouse’s name can go to the court and ‘check out’ your file.

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

Overall term referring to the parent’s right to (1) have a child live with that parent and (2) make decisions concerning the child. In California, there are two types of custody, legal and physical custody. Legal custody refers to decision making for the children. The parents typically share legal custody of the children, despite the living arrangements. Physical custody refers to the amount of time each parent shares with the children. There are numerous types of physical custody arrangements and various labels for custodial arrangements.

Declarations of Disclosure (DOD)

Schedules showing the parties’ income, expenses, assets and debts. California law requires Preliminary DOD’s to be exchanged at the beginning of a case. Final DOD’s may be waived if agreement is reached.

Default

In family law proceedings, going by “default” refers to the Respondent not participating in the divorce, with the Petitioner submitting a proposed judgment to the court dividing the property. Also, a Marital Settlement Agreement can be submitted as a ‘default’ even if both parties have signed.

Deposition

Testimony under oath taken before a court reporter but not in court. A deposition is usually taken at one of the attorney’s offices.

Direct Examination

The questioning of a witness by the lawyer who called the witness.

Discovery

A formal method of acquiring information and evidence needed for the divorce. Methods include depositions, Request for Production of Documents, Interrogatories. When served with a formal discovery request, the recipient must comply within a specified time period.

Dissolution of Marriage

The official “term” for divorce in California.

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. In San Diego County, domestic violence actions are handled in a separate court, unless a divorce has been filed when a domestic violence incidence arises.

Epstein credit

A reimbursement credit given to a spouse who, post separation, as paid for debts incurred during the marriage. The spouse is only entitled to one half of the debts paid. Payment of the debts must have been made after the date of separation and proof must be given as to payment.

Evidence

Proof presented at a hearing or trial. In family court hearings, testimonial evidence is submitted by written declarations. Documentary evidence is lodged with the court, usually as an exhibit. In trials, the parties and witnesses give live testimony.

Ex Parte Hearing

An ‘emergency’ request to a court for relief that cannot wait until a noticed hearing is called. An ex parte can be called to make injunctive orders restraining certain conduct, to issue protective orders concerning children or to reschedule matters on the court’s calendar.

Family Court Services (FCS)

Custody and visitation mediators provided by the Superior Court. Parties may elect to have a private mediator instead of using an FCS mediator. The FCS mediator will interview the parents, with the goal of getting a negotiated agreement for their children. If the FCS mediator is not successful in getting the parents to agree, the mediator may interview others, i.e., the children, teachers, counselors, etc. in an effort to make a recommendation to the family court judge. The recommendations made by the FCS mediator are then considered by the judge in making custody and visitation orders.

Five Way

A ‘five way’ is a meeting between the parties, their two attorneys and an attorney mediator in an effort to informally settle any or all issues in the case.

Four Way

A ‘four way’ is a meeting between the parties and their two attorneys in an effort to informally settle any or all issues in the case.

Garnish

To take money from wages or from an account to satisfy an unpaid court order for the payment of money. In California, the law mandates that child support be garnished from a parent’s wages, unless the parents agree to direct payment. The garnishment is through “Wage Assignment.”

Grounds

The conduct or circumstances which must be proved to entitle a person to a divorce. In California, the only two grounds are irreconcilable differences and incurable insanity.

Guardian ad Litem

In California family court, the term “Minor’s Counsel” is used to describe the attorney appointed by a judge to represent a minor child’s interest in a divorce proceeding. This is usually done when the judge has concerns that the child’s rights may not be protected without separate counsel.

Hearing

A short proceeding before a judge. In California family court, hearings are usually limited to 20 to 40 minutes of argument from the attorneys. Also called an Order to Show Cause.

Injunction

A court order which requires a party to do some act or prohibits a party from doing some act. In family court, injunctive relief is often found by restraining orders preventing a party from transferring funds or liquidating property.

Interrogatories

Written questions served on the other party who is required to serve sworn written answers within a specified time. This type of discovery is frequently used in family law. There are two types: Form Interrogatories and Special Interrogatories.

Joint Custody

Generic term meaning “shared custody.” The two forms of joint custody are joint legal and joint physical. Joint legal custody refers to the parents having joint decision making ability for their child’s health, welfare and education. Joint physical custody refers to a plan where the child spends a significant amount of time with each parent.

Judgment

The “final” decision of the court as to the terms of the divorce. However, in family court, the judgment is not necessarily final in terms of child custody, visitation and support, as these issues can be modified after the divorce is over.

Judicial Council Form

The type of form required by the court system for certain pleadings filed with the court. For instance, the Petition for Dissolution will not be accepted unless it is on the proper form.

Jurisdiction

The power of a court to decide a particular matter.

Legal Separation

In California, a Legal Separation is very similar to a divorce proceeding, except that the parties remain married. Oftentimes a person will file for Legal Separation in the beginning, hoping to reconcile.

Lien

A legal claim or charge on property for the payment of some debt, obligation, or duty.

Lis Pendens

A legal document filed with the County Recorder’s Office that puts society on notice that a lawsuit is pending concerning certain real estate and does not allow clear title until a Withdrawal of Lis Pendens is filed.

Litigation

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

Local Court Rules

The family court is a part of the California Superior Court system, however San Diego County has specific rules that apply to the family courts downtown and Vista. Our office believes in strict compliance with these rules, as failure to follow them may result in bad orders.

Mandatory Settlement Conference

The court clerk sets a time for the parties and their attorneys to meet and confer at the courthouse with a settlement conference ‘judge’ to determine which issues are settled and which issues must be litigated. The Mandatory Settlement Conference is mandatory in all Vista cases going to trial and in all long cause cases downtown going to trial.

Marital Property

Interests in property acquired by the spouses during the marriage which is to be divided between the parties at divorce.

Marital Settlement Agreement (MSA)

The written agreement made between the parties settling the issues in a divorce. The issues in a typical divorce case are: termination of marital status, spousal support, child custody and visitation, child support, division of property, division of debts, award of reimbursement claims, attorney’s fees and costs.

Mediation

Generic term with several different meanings. In the family court system, mediation by a court ordered mediator is required in every case where custody and visitation are in dispute. In a different context, a private mediator can work with divorcing parties, usually without attorneys, to work out a settlement.

Meet and Confer

The legal terminology for the two attorneys (Petitioner and Respondent) to discuss the case before a hearing or trial. Can be in person or on the phone and can include the parties.

Minor’s Counsel

An attorney appointed by a judge to represent a minor child’s interest in a divorce proceeding. This is usually done when the judge has concerns that the child’s rights may not be protected without separate counsel.

Motion

In family court, a written application to the court for an order. The court clerk sets a hearing date for the parties to appear in court.

Modification

An ‘official’ change in a portion of the judgment after the case has been finalized, usually based on a change of circumstances. In California, the issues of child custody, visitation and support are modifiable.

No Fault Divorce

A system of dividing property and making support orders where the judge does not take into consideration any misconduct by the parties. The only area where fault may be in issue is in child custody disputes or allegations that a party has breached a fiduciary duty to the other party.

Order

A ruling by the court, either made by the judge or by agreement of the parties.

Order to Show Cause

A hearing of between 5 and 40 minutes that allows the judge to make orders on issues such as spousal and child support, custody and visitation and attorney’s fees.

Parenting Plan

The term used by Family Court Services and the court system which specifies the schedule for the children, i.e., the specific days and times allocated for each parent to have the children. The parenting plan includes the weekly schedule, as well as holidays, vacations and breaks and also includes directives to attend counseling or anger management, when appropriate.

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.

Pendente Lite Orders

Temporary orders made before a final judgment is issued.

Petition

The legal pleading required to request the court to grant a divorce. The Petition includes statistical information of the parties, the grounds for the request for divorce and general request for relief.

Petitioner

The divorcing party who files the Petition.

Pleading

A document filed with the court which asks for something or responds to a pleading filed by the other party. Nearly all papers filed with the family court are considered pleadings.

Post-judgment

The period of time after a judgment of dissolution is granted. Parties can go in post-judgment to request modification of certain terms of their divorce judgment.

Privilege

A client's right to refuse to disclose confidential communications between the client and certain persons in a professional relationship with the client, such as lawyers, doctors, psychotherapists, and priests.

Pro Per

A litigant in the court system who is not represented by an attorney.

Request for Production

A written request by one party to the other asking the other party to turn over tangible objects, usually documents.

Respondent

The spouse of the divorcing person who files for divorce.

Response

The legal pleading filed by the Respondent setting forth the Respondent’s position on the same issues as presented by the Petitioner in the Petition.

Restraining Order

An order restraining a party from doing something. There are various types of restraining orders, temporary and permanent, covering a range of issues involving a person’s conduct.

Retainer

An agreed upon amount of money paid when first retaining an attorney.

Retainer Agreement

The contractual agreement between an attorney and client detailing the terms and conditions of the attorney’s representation of the client in the legal matter. In California, a Retainer Agreement is required anytime the fees are $1,000 or more.

Separate Property

A person’s property that is not considered a party of the marital estate. Usually this includes property that was inherited, acquired by gift, held before marriage or acquired after the date of separation.

Service

The delivery of court papers as prescribed by the California Code of Civil Procedure and Local Court Rules.

Set Aside

The term used to request a judge to ‘set aside’ a prior judgment.

Settlement

The process of trying to resolve the issues to avoid going to trial. If the parties agree as to the terms of their divorce, an agreement called a Marital Settlement Agreement is prepared to reflect the terms of the settlement, including all issues related to the divorce.

Spousal Support

The term in California defining support paid from the ‘higher earning’ spouse to the lower earning spouse after a marriage. Also called alimony or separate maintenance in other states.

Status Conference

A court appearance required by the attorneys to inform the judge as to the status of the case. The attorneys will relay the time frame needed to complete discovery. The court may set a set a date for a Case Management Conference, Mandatory Settlement Conference and for Trial.

Stipulation

An agreement drawn up in a special format and filed with the court allow the court to make the parties’ agreement an order of the court and fully enforceable as if a judge had made the orders.

Subpoena

A document served on a party or a witness commanding appearance at a certain time and place. A Subpoena Duces Tecum is a command to produce documents, papers, or other things listed in the subpoena.

Summons

The written notification of the divorce (lawsuit) that is served upon the Respondent. Also called a Citation.

Supervised Visitation

Time a parent spends with his or her child that is only allowed if a third party is present to ‘supervise’ the visitation. There are different type of supervised visitation.

Temporary Orders

Orders granting relief between the filing of the lawsuit and the judgment. Automatic in some states. Also called Pendente Lite Orders.

Three Way

A ‘three way’ is a meeting between the parties and a ‘neutral’ professional, such as an appraiser, psychologist or special master, for the purpose of informally discussing a particular issue. This is usually done by telephone.

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. Often times there are disputed issues when can later be resolved by agreement.

Visitation

The right of a parent who does not have primary custody of the child to spend time with the child. The term ‘visitation’ is disfavored in the family court system, instead using the term ‘parenting time’ for the designated times each parent spend with the children.

Wage Assignment

A legal document served upon a party’s employer, used to enforce a child or spousal support order. The employer to take the funds directly from the party’s wages and forwards them directly to the support recipient. By law, child and spousal support is to be paid by wage assignment, unless the parties agree otherwise.

Watts Credit

A credit allowed to a spouse when the other spouse uses a community asset during the time between the date of separation and the date of trial.