Term
MANDATORY SELF-DISCLOSURE |
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Definition
| Material specified by statute or court rules that each party in a legal action must provide the other party within a certain period after filing and service of a summons and complaint |
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Definition
One party asking the other (deponent) questions that are answered under oath
-recorder by a court reporter |
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| Written requests for information sent by a party to the other in a lawsuit |
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Definition
| Discovery method in which a party makes written requests to an opposing party calling for an admission or denial of specific facts and issue or verification or denial of the genuineness of documents relevant to the case |
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REQUESTS FOR PRODUCTION OF DOCUMENTS OR THINGS |
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Definition
| A method of pretrial discovery in which a party makes a written request that the other party produced specified documents or other tangible things for inspection and or copying |
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Term
REQUEST FOR PHYSICAL/MENTAL EXAMINATION |
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Definition
| A method of discovery in which one party requests that the court order the other party to submit to a physical or mental examination for whatever the reason may be |
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| Formal notice from a court informing a defendant of an action filed against them and ordering them to respond and answer the allegations of the plaintiff within a certain period or risk entry of a default judgement |
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| A document ordering a witness to appear and provide testimony in a legal proceeding such as a deposition, court hearing, or trial |
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Definition
| Agreement between parties concerning some matter |
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Definition
| Delivery of a summons and complaint to a defendant in a manner consisten with local procedural rules, usually in hand by an authorized individual (sheriff) or in publication (newspaper) or mailing to last known address |
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Definition
| Geographical location within which a particular action should be filed |
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Definition
| Against a thing; authority a court has over property or things within its jurisdictional borders |
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Definition
| The condition of being below the minumun age established by law to perform a particular act |
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Term
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Definition
| A threat of harm made to compel a person to do something contrary to his or her free will or judgement |
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Term
CONSANGUINITY
AFFINITY
BIGAMY |
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Definition
Blood relationship
relationship by marriage
act of enetering a marriage while still married to someone else |
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Term
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Definition
Sexual intercourse between two people who are closely related as defined by civil and criminal statutes
prohibited degrees of consanguinity and affinity in the marriage context in some states |
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Term
What are the differences between annulment and divorce |
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Definition
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-Divorce severs a marriage the parties acknowledge exists.
-In the vast majority of cases, the cause for divorce arises after the
marriage was established.
-Divorce terminates a marriage as of the date of the divorce judgment.
-Traditionally after divorce, the parties have a continuing legal status as
former spouses with respect to custody, support, and property division.
-Alimony and other benefits flowing from a prior marriage usually are not
revived following divorce.
-In a divorce, marital property is usually divided based on community
property or equitable distribution principles.
-In some states, spousal support may be awarded based on one party’s
need and the other party’s ability to pay.
-Divorced spouses may file a joint tax return for the year in which their
divorce is granted assuming they are married for some portion of that year.
-One or both parties claim the purported marriage
does not exist.
-The ground exists at the inception of the
“marriage.”
-An annulment declares the marriage null and void
from the outset (ab initio).
-Some rights previously terminated upon the
“marriage” may be revived.
-In some states, rights to property acquired during
the marriage may be extinguished and in others they
may be preserved using equitable remedies.
-Absent a statute there is usually no right to
spousal support following an annulment.
-If the parties filed joint tax returns in the 3
years prior to the annulment, they must each file
amended returns.
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Term
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Definition
VOID MARRIAGE(grounds) AB INITIO (NEVER EXISTED BECAUSE NOT LEGAL)
nonange, consanguinity, affinity, bigamy, physical incapacity or disease
VOIDABLE(ABLE TO BE REVOKED)
fraud, lack of consent, duress, undue influence, impotence, underage |
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Term
| defenses to an annulment action |
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Definition
compliance with state statutes governing marriage, ratification of the marriage (WHEN THE MARRIAGE IS VOID CONTINUING TO LIVE TOGETHER AFTER THE MINOR BECOMES OF AGE) by subsequent conduct, consummation of the marriage, laches, equitable estoppel, judicial estoppel, unclean hands
pg 110 |
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Term
PROCEDURE FOR OBTAINING AN ANNULMENT |
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Definition
complaint (petition for annulment)
defendant is served
defendant files an answer
motions, discovery, negotiations
court issues a decree |
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Term
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Definition
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•A decreased emphasis on fault
•An emphasis on divorce as an economic event and the spouses as equal partners
•The institution of child support guidelines
•The codification of criteria to guide decisions about custody, spousal support, and property division
•The introduction of parenting plans and programs
•The creation of support systems and user-friendly court procedures for parties who want to proceed pro se
•A reduction in litigation due in part to an increased use of alternative dispute resolution (ADR) methods
•A movement toward respect for autonomy and privacy in family relationships
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Term
legal separation
separate maintenance
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Definition
allows parties to live separate and apart without ending their legal relationship as husband and wife (limited divorce)
court ordered spousal support while the parties are living separate and apart but not divorced, where legal separations are not granted |
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Term
| STAGES IN A DIVORCE PROCESS |
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Definition
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•Initial client interview is conducted
•Primary issues in the case are identified (custody, property division, grounds, etc.)
•Potential for mediation is explored throughout the process
•Jurisdictional issues and choice of proper venue are identified and resolved, if necessary
•Complaint is filed and plaintiff’s attorney files an appearance
•Summons and Complaint are served on the defendant
•Defendant files an Answer or a Motion to Dismiss and his or her attorney files an Appearance/Limited Appearance
•Motions for temporary orders are filed and heard, if warranted
•Discovery is conducted, if warranted and feasible
•Separation/Marital Agreement is negotiated/ drafted/reviewed
•If all issues are settled, agreement is filed with the court and the parties proceed to a final hearing
•If not settled, prepare for and attend a Pretrial Conference
•Prepare for Trial
•Trial on contested issues is held
•Judgment/Decree is issued by the court
•Follow-up matters completed such as preparation of QDRO and transfer of assets
•Posttrial motions or Appeal filed, if warranted
•Enforcement of the Judgment is pursued (contempt actions, if necessary)
•Modifications of Judgment are sought if necessary based on substantial changes in circumstances
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Term
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Definition
A PERSONS LEGAL RESIDENCE THE PLACE ONE CONSIDERS HIS OR HER PERMANENT HOME AND TO WHICH HE OR SHE INTENDS TO RETURN WHEN AWAY
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Term
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Definition
ADULTERY
DESERTION/ABANDONMENT
CRUELTY
HABITUAL DRUNKENESS/DRUG ABUSE
CRIMINAL CONVICTION/INCARCERATION
IRRECONCILABLE DIFFERENCE
LIVING SEPARATE AND APART |
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Term
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Definition
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The purpose of discovery is to gather as much information as possible
about a case so that attorneys can make appropriate recommendations
and clients can make informed decisions about their options.
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Term
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Definition
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–Searching public records
–Collecting bank account records and credit card statements
–Locating copies of income tax records
–Checking Blue Book values of vehicles, boats, etc.
–Checking stock values
–Using a private investigator
–Interviewing potential witnesses
–Gathering copies of deeds, titles, registrations
–Making copies of electronically stored documents, emails, etc. if legally accessible
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Term
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Definition
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•Interrogatories: a method of discovery in which one party submits a series of written questions to an opposing party to be responded to in writing within a certain period of time under pain and penalty of perjury
•Strengths:
–Cost effective
–Generate further discovery requests
–Can identify potential witnesses, experts, physicians etc.
–Respondent has a duty to locate information necessary for response and to supplement
•Weaknesses:
–Can only be used with parties
–Reviewed by respondent’s attorney so they reveal as little as possible to the requesting party
–Responses are written so do not reveal respondent’s potential weaknesses as a witness
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Term
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Definition
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•Deposition: a method of pretrial discovery in which one party questions the other party or a third person under oath; oral or written responses to questions are reduced to writing for possible later use in a court proceeding
• Strengths:
–Can be used with parties and nonparty witnesses
–Necessary information can be obtained more quickly
–Performance of the deponent under oath can be assessed
–Follow-up and clarifying questions can be asked if answers are incomplete, evasive, or open a new topic
•Weaknesses:
–Expensive
–May reveal the deposing party’s theory of the case
–May reveal the deposing party’s defenses
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Term
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Definition
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•Request for admission: a discovery method in which a party makes written requests to an opposing party calling for an admission or denial of specific facts at issue or verification or denial of the genuineness of documents relevant to the case
•Strengths:
–Cost-effective
–Narrow the issues to be addressed at trial
–Clarify disputed issues and confirm suspicions
–Reduce the facts (or validity of signatures or documents) needing to be proved at trial
•Weaknesses:
–May reveal the requester’s theory of the case and defenses
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Term
REQUESTS FOR PHYSICAL OR MENTAL EXAMINATION |
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Definition
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•Requests for physical or mental examination: a method of discovery in which one party requests that the court order the other party (or in limited instances, a third party) to submit to a physical or mental examination
•Strengths:
–May lead to discovery of otherwise privileged information
•Weaknesses:
–Can usually only be served on parties
–Highly intrusive and may exacerbate conflict
–Usually must be sought by motion and good cause must be shown
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Term
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Definition
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•Electronic discovery: discovery of documents in electronic form; refers to any information created, stored or utilized with computerized technology of any sort
•The focus of e-discovery is on finding information stored in computers. The information can be sought from parties, employers, investment firms, friends, relatives, and others.
•It may be used to discover business records, personal records, cell phone records, etc.
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Term
OBJECTIONS TO DISCOVERY REQUESTS |
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Definition
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The request is unduly burdensome
–The request seeks information or material that is not relevant to the issues in the case
–The document, item, or information sought is not in the party’s possession or control
•The document, thing, or information requested is protected by a privilege recognized in the jurisdiction such as attorney work product, doctor-patient, etc.
•The information being sought is cumulative
•The form of the question is improper
•The request is being made solely for the purpose of harassment
•Compelling a response would violate the respondent’s Fifth Amendment right against self-incrimination
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Term
SANTIONS FOR FAILING TO COMPLY WITH DISCOVERY |
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Definition
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•They may convene discovery conferences to resolve disputes and order a discovery schedule
•They may issue protective orders when discovery is being conducted in bad faith, is excessive, or seeks privileged information
•In response to a motion, they may issue court orders compelling compliance with discovery
•If a party fails to respond to an order to compel, a court can hold him or her in contempt, award attorneys’ fees to the other party, not permit the admission of certain evidence at trial, or in the extreme, stay or dismiss the case if the party in contempt is the moving party
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Term
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Definition
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•A financial statement/affidavit is a party’s statement of his or her assets and liabilities signed under pain and penalty of perjury. In some states it must also be signed by the party’s attorney.
•Financial statements are basically inventories of each party’s assets and liabilities. They are designed to provide the parties with the information they need to make informed decisions. They also give the courts a frame of reference for making decisions with respect to matters of support and property division.
•Financial affidavits can now be located online in virtually all states and are also available in family courts. In many states, a financial statement is given to the defendant along with the summons and complaint for divorce.
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Term
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Definition
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•They transfer assets to family, friends, or paramours
They set up custodial accounts for their children
•They postpone receipt of bonuses and commissions etc. until after the divorce
•They have a business and make payments to friends and relatives for work that was not actually performed
•They keep cash, precious metals, and other valuables in safe deposit boxes
•They make substantial and unexplained withdrawals from various accounts for unknown or unexplained purposes
•They accumulate substantial vacation and sick time during the marriage for which they will later be paid
•They make sham loans to family and friends
•They receive unacknowledged perks at work such as parking, travel, food, and housing allowances
•They hold unregistered bonds or valuable unexercised stock options
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Term
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Definition
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•Some of the best resources for detecting hidden assets are:
–Tax returns
–Bank statements
–Credit card statements
–Financial statements
–Public records
–Mortgage applications
The family law team looks especially for inconsistencies among the above and sometimes a “forensic accountant” may be retained to analyze and present evidence at hearings or trial |
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