Divorce Manual a client Handbook

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Abraham Lincoln said, "A lawyer's time and advice is his stock in trade." It's still true. Time on the phone is just as valuable as the other time your lawyer spends on your case. But there are several ways you can minimize fees for phone calls. Accumulate several questions, write them down, and ask them all during one call. When giving your lawyer information, it may be more efficient to give it to a secretary or to send it in writing. Nonetheless, every person and every case is different. If you need the reassurance and are willing to pay for it, it might be worth it to you to call more often.

9. What if I can’t pay for appraisers and other experts?


If you don't have money to hire experts, you may have no choice but to proceed without experts. It may also be possible to get a court order for expert's fees to be advanced by your spouse or from marital property. In any event, it is not your lawyer's obligation to pay for experts which might be needed on your case.

10. Why do I have to pay a lawyer to force my ex-spouse to comply with the marital settlement or judgment?


No one can guarantee that your spouse will honor agreements or court orders. Courts will enforce orders if an appropriate request is made, but it is not the lawyer’s responsibility to provide enforcement for no fee.

XIII. ESTATE PLANNING CONSIDERATIONS


A. At the beginning of the case
You may have an estate plan or will that gives your entire estate and life insurance to your spouse if you die. This plan does not necessarily change because someone files for divorce. Talk to your lawyer about what changes, if any, you need to make and are able to make in your estate plan while the divorce is pending.

Not only should you review your will, you should review the beneficiary designations for your life insurance and retirement plans, including IRAs, and discuss with your lawyer what changes, if any, to make. If you are holding property with your spouse in a form that would give it all to your spouse on your death, you may want to change the form of title.

There may be restraining orders that temporarily limit your right to change title to property or beneficiaries of insurance and death benefits.

B. After the divorce


In some states a divorce will automatically change your estate plan. In other states it won't. So when the case is over, update your estate plan to be consistent with the judgment and with what you want to happen to your estate.

GLOSSARY
Affidavit

Written testimony under oath - usually sworn to in front of a notary.

Alimony


Payments made to support a current or former spouse. Also called maintenance or spousal support.

Alternative Dispute Resolution

Ways for parties to a divorce case to resolve their disagreements without a trial; usually defined to include negotiation, mediation and arbitration.

Annulment

An order which nullifies a marriage, or declares that no marriage ever existed. Also called declaration of invalidity or declaration of nullity.

Answer


A document used to respond to the complaint or petition. Answers usually admit or deny specific allegations or claims in the document being answered. Also called a response.

Appeal

A procedure to ask a higher court to review the ruling of a lower court.

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.

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.

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.

Child Support

Money paid by one parent to the other for the support of their children.

Citation.

See Summons

Common Law Marriage

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

Community Property

A form of co-ownership of property by a husband and wife who reside in one of the eight states where community property is recognized.

Complaint

The first document filed in a case setting forth facts upon which the plaintiff’s claim is based. Now called a petition in many states.

Contempt of Court

Failure to comply with a court order by a person who is able to comply. It also includes conduct in court which obstructs a court in the administration of justice.

Contingency Fee

See Fees

Counterclaim

A pleading asking for a divorce or other relief filed in response to a Petition or Complaint. Also called a Counter-Petition or Cross-Complaint.

Counter-Petition

See Counterclaim

Cross-Complaint

See Counterclaim

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


Usually refers to the parent’s right to (1) have a child live with that parent and (2) make decisions concerning the child. Exact meaning varies greatly in different states.

Declaration

Written testimony under oath, not necessarily sworn to before a notary.

Default


Failure to do something or to do it on time.

Defendant

The husband or wife who is sued for divorce. In some states, the

respondent.

Deposition

Testimony under oath taken before a court reporter but not in court. A discovery method.

Direct Examination

Asking questions of a witness by the lawyer who called the witness.

Discovery

Procedures used to learn facts necessary to settle a case or prepare it for trial.

Dissolution of Marriage

The legal process of ending a marriage. In most states, the legal term for divorce.

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.

Equitable Division

A system of dividing property owned by parties to a divorce. Now used in the majority of states.

Evidence

Proof presented at a hearing, including testimony, documents or objects.

Exhibits

Tangible things presented at trial as evidence.

Ex-Parte

Any application to a court for relief made when only one side is present, or in some states, without formal notice.

Fees

A lawyer's charges paid by a client for legal services rendered to the client. Although many different fee arrangements are possible, the following represent the most common types of fees:


1. Hourly fee: A fee based on the time expended and an hourly rate.

2. Retainer: Money paid by the client to the lawyer to obtain a commitment from the lawyer to handle the client's case. A retainer can be a deposit against which the lawyer charges fees as they are earned. It can also be a non-refundable engagement fee. This is a fee that is sometimes charged by a lawyer for the agreement to take your case and to commit to being available for your case. Normally, an engagement fee is in addition to charges on an hourly rate basis. Your written fee agreement should specify whether a retainer fee is refundable, and if so, in what amount and under what circumstances.

3. Contingency Fee: A percentage of the recovery. Contingent fees are generally forbidden in divorce cases, but, in some states, are permitted in a proceeding to enforce the judgment.

4. Bonus Fee: A fee based upon factors in addition to the hourly fee. Also called a premium or final fee.

5. Flat Fee: A fee in a fixed amount for handling an entire case or a certain part of it.

6. Minimum Fee: A fee which sets a floor on charges for services.

File

To place a document in the official custody of some public official. Also used to mean start a case.


Garnish

To take money from wages or from an account to satisfy an unpaid court order for the payment of money.

Grounds

The conduct or circumstances which must be proved to entitle a person to a divorce. See No-Fault Divorce.



Guardian-ad-Litem

A person appointed by a judge to prosecute or defend a case for a person legally unable to do so, such as a minor child.

Hearing

Any proceeding before a judicial officer.



Injunction

A court order which requires a party to do some act or prohibits a party from doing some act.

Interrogatories

Written questions served on the other party who is required to serve sworn written answers within a specified time. A type of discovery.

Joint Custody

Any arrangement which gives both parents legal responsibility for the care of a child. In some states, also means shared rights to the child’s companionship.

Judgment

The decision of a court. A type of order. Also called a decree.

Jurisdiction

The power of a court to decide a particular matter.

Legal Separation

A court order or, in some jurisdictions, a written agreement between the parties, arranging the terms under which the parties will live apart after separating. While signifying the separation of the parties, it does not formally dissolve the marriage or permit the parties legally to marry other persons.

Lien

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


Litigation

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

Maintenance

See Alimony.

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

The written agreement made between the parties settling the issues in a divorce. Called a Separation Agreement in some states.

Mediation

A dispute resolution process in which a disinterested third party, the mediator, assists the parties in reaching an agreement.

Motion

An application to the court for an order. May be written or oral.


Modification

A change in the judgment, based on a change of circumstances.

No-Fault Divorce

A divorce granted without proving that one party is guilty of misconduct.

Order

A ruling by the court.



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.

Petition

See Complaint

Petitioner (Plaintiff)

The party who filed the Petition (Complaint).

Plaintiff

See Petitioner

Pleading

A document filed with the court which asks for something or responds to a pleading filed by the other party.

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.

Propria Persona, In

See Pro se.

Pro Se

A party who is representing him or herself in a lawsuit.



Request for Production

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

Respondent (Defendant)

The party defending against a divorce Petition (Complaint).

Response

See Answer.

Restraining Order

See Injunction

Retainer

See Fees.

Retaining Lien

A lien that permits an attorney to hold any of your property, papers and records in the attorney's possession until fees are paid.

Separate Property

A property which is neither community nor marital property. Also called non-marital property.

Service

The delivery of official papers by a means prescribed by law.


Settlement

The resolution of disputed issues by agreement between the parties.

Spousal Support

See Alimony.

Stipulation

An agreement between the parties or their lawyers about issues in the lawsuit.

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 lawsuit that is served upon the Defendant. Also called a Citation.


Temporary Orders

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

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.

Visitation

The right of a parent who does not have primary custody of the child to spend time with the child.



© 1994 American Academy of Matrimonial Lawyers • www.aaml.org




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