Divorce Legal Terminology

• Affidavit: A sworn, voluntary statement
• Agreement: A mutual understanding between two or more parties regarding each person agreed action to be performed in the past or future
• Annulment: A suit for annulment used to declare a marriage void; the bases for the suit focuses on pre-marital causes; grounds for annulment include: marriage of an underage spouse; influence of drugs and alcohol; impotency; fraud, duress, or force; and mental incapacity
• Answer: A respondent’s first pleading in response to petitioner’s allegations; if no answer is filed, the petitioner can obtain a default judgment
• Appeal: Proceeding to challenge a final decision made by a trial court; the case is delegated to a higher authority to determine if the trial court abused their legal discretion; a decision may be reversed on appeal
• Arbitration: A form of alternative dispute resolution – avoids the courtroom and the expensive cost associated with settling a case at trial; involves a neutral third party to help reach an agreement that is binding on all parties involved
• Claim for reimbursement: A claim for reimbursement can be made at the time of divorce when one spouse’s estate – either community or separate is used to benefit or enhance another spouse’s estate – either community or separate; there are nine specific claims for reimbursement available to a spouse at the time of divorce
• Clear and convincing evidence: Evidentiary standard that requires the thing to be proved is highly probable or reasonably certain; this evidentiary standard is a lower burden than “beyond a reasonable doubt” which is used in criminal cases
• Collaborative Family Law Act: A form of alternative dispute resolution; Act established in 2011 to encourage peaceful methods of resolving disputes; collaborative law settlement can involve several neutral parties working with the parties and their lawyers to achieve an agreement
• Commingling of separate and community property: Commingling of separate and community property occurs when property owned by either spouse is combined and no longer has a separate identity; the tracing principle is used to “un-commingle” spousal property
• Common law marriage: Texas law recognizes common law marriages to be valid; proving a common law marriage has been formed is fact-based; requirements for an informal marriage: two people must agree to be married, cohabitate (live together), and hold themselves out as husband and wife to the public; if all three (3) requirements are met – the marriage is legally valid and if you wish to divorce, you must obtain a legal divorce through a court
• Community out first presumption: During a marriage, when property is purchased with funds that have been commingled between spouse’s, the money used for the purchase will be presumed to be part of the community – not the separate property of a spouse
• Community property: Any property acquired by either spouse during a marriage except property acquired by gift, will, or inheritance
• Community property presumption: At the time of divorce, all property owned by each spouse is presumed to be part of the community estate; separate property of a spouse must be established by clear and convincing evidence; also any property purchased during a marriage is presumed to be a part of the community estate
• Contempt: Enforcement method for custody, child support, and spousal maintenance; when a party is in violation of a court order they may be found in contempt which is punishable by fine, jail time, or both
• Contested divorce: A divorce where there are issues that are not agreed upon by both spouses; typically spouses contest matters related to child custody, child support, and property division
• Continuing, exclusive jurisdiction: Once a court renders order over matters related to child custody and child support , the court retains continuing exclusive jurisdiction; only that particular court has jurisdiction over the matter until it is determined that continuing exclusive jurisdiction has been lost because the child no longer has a parent residing in the state or substantial contacts related to the care and control of the child
• Default: When served with court documents, you must legally file an answer; failure to do so can result in a default judgment, which will likely be unfavorable for your circumstances
• Discovery: The formal process of information gathering and sharing between the parties of a case
• Dissolution: The legal term for divorce; The Family Code refers to a divorce as a suit for dissolution of a marriage
• Divorce decree: The final divorce decree can be agreed or ordered by the court; sets out the division of the marital estate, child custody, child support, and any other provisions that are necessary for the circumstances; the divorce decree is an enforceable legal document
• Due process: Conduct implemented procedurally in order to protect your rights as an individual; due process includes right to notice and right to a fair hearing
• ERISA: Employee Retirement Income Security Act is a federal statute that governs private pension plans and specific employee benefit plans; ERISA may affect the division of retirement plans at divorce
• Fault grounds for divorce: Fault ground are rarely used as grounds for a divorce; typically  in a divorce case, fault grounds are used in determining how the marital property shall be split or determining if spousal maintenance is warranted in the circumstances; the statutory fault grounds in Texas include: cruelty; adultery; conviction of a felony; living apart for three years; abandonment for more than one year; and confinement to a mental hospital
• Filing: The act of providing the court with documents that are officially added to the case file
• Final orders: Final orders can be issued in the form of a Final Divorce Decree, Order in Suit Affecting the Parent-Child Relationship or other order that is intended by the parties and the court to be enforceable permanently
• Fraud on the spouse: Fraud on the spouse is a doctrine used when one spouse has excessively and capriciously used community funds to defeat the other spouse’s community property rights; doctrine is used to challenge the transfer of community property
• Grounds for divorce: Most divorces are granted on no-fault grounds, however, The Texas Family Code provides fault grounds that can be plead for property division purposes and to obtain spousal maintenance; fault grounds in Texas include: adultery, cruelty, felony conviction, abandonment, living apart for more than three years, and confinement to a mental hospital for at least three years
• Inception of title rule: Inception of title rule is used to classify property as separate or community; the rule bases the classification off of when the property was acquired – before marriage or after marriage
• Injunction: A court order prohibiting or ordering a specific action; injunctions provide relief from harm when there is no other adequate remedy at law; injunctions can be granted on a temporary or permanent basis
• Judgment: A court’s final decision regarding the rights and obligations of parties involved in a case; also called a ruling or order
• Jurisdiction: A court’s ability to hear a case; jurisdiction has two components – the person and the subject matter; a court must have proper jurisdiction over the parties involved and subject matter of a case
• Just and Right division: The method used by the court when dividing the community estate at the time of divorce; court has wide discretion in determining what is “just and fair”; many factors are taken into consideration when the court makes the division
• Management of property: When dividing a marital estate, the power to manage, control, and dispose over particular property may be taken into consideration; Community property can be solely managed by one spouse; For example, if each spouse has a vehicle that was acquired during the marriage – both vehicles are part of the community estate but are solely managed by each respective spouse
• Mandamus: An order from a court commanding a lower court to act in a particular way to correct previous actions of inaction
• Marital agreement: An agreement between spouses with terms relating to the rights and obligations in any property, management and control of property, disposition of property, modification of spousal support, making a will or trust to carry out provisions of the agreement, benefits from life insurance policies, and other matters that are not criminal violations or against public policy
• Marriage license: A marriage license must be obtained in order to have a valid ceremonial wedding in the state of Texas; a marriage may also be valid with no marriage license – see common law marriage 
• Mediation: A form of alternative dispute resolution – avoids the courtroom and provides a more relaxed and personable environment; mediation can result in a mediated settlement agreement which is binding on all parties; mediation is often used to avoid the cost associated with going to trial
• Motion: A request to the court – either written or oral, asking the court make a specific ruling or to act in a certain manner
• No-fault divorce: The majority of divorces are sought on no-fault grounds; No-fault divorces are granted on the basis of insupportability; a marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation
• Partition: The act of dividing real property belonging to more than one person; a partition creates an individual interest in the divided property
• Petition for Divorce: The document used to commence the divorce process; once the original petition for divorce is filed, parties are notified and the information gathering process for a divorce begins
• Petitioner: A party that initiates a proceeding by filing a petition with a court
• Pre-marital agreement: A contract between two parties who have the intent to get married; must be in writing; can agree to terms relating to the rights and obligations in any property, management and control of property, disposition of property, modification of spousal support, making a will or trust to carry out provisions of the agreement, benefits from life insurance policies, and other matters that are not criminal violations or against public policy
• Pro Se: A party to a suit who represents themselves in a law suit
• Property conversion agreement: An agreement between spouses that converts separate property of a spouse into community property; the agreement changes the character of property; often times, spouses enter into a property conversion agreement for tax benefits
• Qualified Domestic Relations Order: Often referred to as a QDRO – a qualified domestic relations order recognizes an alternate spouse’s rights at the time of divorce to receive all or part of benefits arising from the other spouse’s participation in a pension or other retirement plan; governed by federal law; can be penalized if benefits are paid too soon or too late
• Reconciliation: Restoration of harmony from conflict and discord between two persons; in order to have a divorce granted on no-fault grounds, there must be no chance of reconciliation between the parties
• Respondent: The party who responds to a suit initiated by a Petitioner; sometimes referred to as defendant
• Separate property: Any property acquired or owned by a spouse before a marriage; any property acquired by gift, will or inheritance during a marriage; any personal injury recovery for a spouse during the marriage – does not include loss of earning or medical expenses
• Service: The formal delivery of official legal documents; also known as service of process; a person is entitled to notice under their due process right
• Spouse: A person who you have a marital relationship whether being a formal marriage or informal (common law) marriage
• Standing: A person’s ability to bring a suit in front of a court to make a legal claim or seek enforcement from a court
• Subpoena: The method used to compel a person to appear either in front of a court or other form of tribunal – including depositions; failing to appear may result in a penalty
• Suit Affecting the Parent-Child Relationship: Abbreviated as SAPCR; a suit brought to determine the care, custody, and control of a child; SAPCR involves all issues that affect the parent-child relationship including child custody, rights and duties of parents, child support, visitation, and other related aspects; must be filed by a person with standing; A divorce case involving children must also file a SAPCR simultaneously with the original petition for divorce
• Temporary orders: Temporary orders can be obtained to govern property and children issues during the pendency of the divorce suit; custody, support, and provisions governing the temporary use of community property, can all be ordered via Temporary Orders
• Tracing principle: Tracing is a technique used to analyze the expense of funds and determine whether the original source of funds came from a spouse’s separate property or came from the community
• Uncontested divorce: When a divorce is uncontested, you and your spouse are in agreement regarding how marital property will be divided and if there are children of the marriage, both spouses must agree to custody and support; if there is any disagreement to anything encompassed within a divorce suit, the divorce will be considered to be contested
• Voluntary termination: A parent may choose to terminate their parental right voluntarily; a petition to voluntarily terminate a parent’s right can be filed at any time after the first trimester of the pregnancy; a parent can terminate their rights and avoid the court system by filing an affidavit of relinquishment of parental rights; the completion of a medical history report may also be required because termination is typically a precursor to adoption
• Waiting period for marriage license: Texas law requires a couple to wait at least seventy-two (72) hours after obtaining the marriage license to have the marriage ceremony; exceptions to the seventy-two (72) hour rule for active duty service men and couples who have completed a premarital educational course
• Waiting period for divorce: Texas law requires a 60 day waiting period before the court will grant a divorce