From filing a complaint to equitable distribution of property, you will encounter many legal terms when going through a divorce. While the terminology and laws vary by state, many states use the same terms to refer to different aspects of divorce. Going to court or settlement negotiations with a basic understanding of different legal terms and concepts may help you better understand and communicate your side of the story.
A divorce is initiated by filing a complaint for divorce. A complaint, also known as a petition, asks the court to dissolve your marriage, specifies the grounds, or reasons, for divorce, and makes requests regarding the terms of the divorce. Your spouse will have the opportunity to file an answer, or response, in which he may assert counterclaims providing his own grounds for divorce and his requests for the terms of the divorce. Throughout the proceedings, you may be asked to submit various affidavits, such as financial affidavits, which are sworn documents that may be used in court.
Grounds for Divorce
Depending on the laws of the state, you may file for divorce on fault or no-fault grounds. Fault grounds place blame on one spouse for causing the dissolution of the relationship, such as the grounds of adultery, cruelty, habitual drunkenness or desertion. On the other hand, some states have completely abolished fault grounds and only allow couples to divorce on no-fault grounds, such as irretrievable breakdown of the marriage, irreconcilable differences or incompatibility. All states allow couples to divorce on no-fault grounds, while some states require you to live separately for a period of time before filing.
Contested or Uncontested
Regardless of whether you file for no-fault or fault divorce, the divorce proceedings may be contested or uncontested. If you and your spouse agree to the grounds of divorce as well as the terms, including property division, alimony, child support and custody, the divorce is uncontested. On the other hand, if you cannot agree, the divorce is contested and the issues will be decided by a court.
The court in your state may award different types of alimony, also known as spousal support or spousal maintenance. Alimony may be permanent, meaning payments will continue until the receiving spouse dies or remarries, or durational, automatically ending on a certain date. Further, the court may award rehabilitative alimony, which pays for the cost of school or training to help the receiving spouse transition to financial independence.
Child Custody Terms
Courts in many states differentiate between legal and physical custody. Legal custody refers to which parent makes major decisions for the child, such as religious affiliation, while physical custody refers to which parent the child lives with. Further, the court may grant sole legal or physical custody, meaning one parent has custody, or joint legal or physical custody, meaning both parents share in the responsibility. The court may require a parenting plan, which provides details about the parenting schedule and how decisions will be made. The court may also order parents to attend mediation, where a neutral third party helps the parents come to their own agreement about custody instead of going to trial.
Child Support Terms
Different states calculate child support using different formulas, although the majority of states follow the income shares model. Under the income shares model, the court considers the income of both parents when calculating child support. On the other hand, some states follow the percentage-of-income model, which means the court only considers the income of the noncustodial parent. A few states follow the Melson formula, which considers the income of both parents as well as the needs of each parent, among other public policy considerations.
Your state may be a community property or equitable distribution state. In community property states, all marital property is divided equally between the spouses following a divorce. On the other hand, courts in equitable distribution states look at a variety of factors to determine how to fairly and justly divide property between spouses.