The Family Law Attorneys have found that common legal terms can be confusing to clients that do not use them regularly. Below is a list of the most common terms used in family law and their definitions.
Absolute Divorce: In North Carolina, absolute divorces are almost always granted on the basis of one year’s separation. An absolute divorce may only be obtained through a judgment of the Court. There are major legal ramifications that accompany the entry of such a judgment. A divorce judgment automatically ends certain legal rights that exist by reason of your marriage and automatically bars claims for alimony and equitable distribution of property, unless those claims have been settled with appropriate written legal documents or unless those claims have been raised in a legal proceeding and are pending at the time of the absolute divorce.
Grounds for Divorce: A spouse seeking an absolute divorce must be able to demonstrate to the court that (1) that he or she has been living in separate dwellings from the other spouse for a period of at least one year, (2) that during that year, the parties did not resume the marital relationship and (3) that at least one of the spouses formed the intent to end the marital relationship when the separation first occurred.
Reconciliation: Failed attempts at reconciliation may be considered a resumption of the marital relationship and can have significant legal repercussions. While we want marriages to succeed, a party contemplating reconciliation should discuss this issue with a divorce attorney to minimize any adverse legal consequences.
Dating Relationships: Any extramarital affairs or dating relationships on the part of either spouse, either before or after a separation, should be brought to the attention of your attorney so that you can be advised on how these relationships may affect your legal rights. In North Carolina, a spouse may be able to bring a lawsuit against a third party for alienating the affections of and/or having sexual relations with that spouse’s husband or wife.
Importance of Attorney Consultation: It is very important for you to consult a divorce attorney immediately upon being served with an absolute divorce complaint and you should consult an attorney before filing an absolute divorce complaint yourself.
Alienation of Affections: This is a civil tort action that a spouse brings against the boyfriend or girlfriend of the other spouse. It is based on the common law idea that spousal affections can be stolen.
Alimony: Alimony is financial support provided to a spouse or former spouse.
Annulment: An annulment is a remedy to set aside a marriage based upon certain limited legal grounds or circumstances.
Answer: The pleading in which the defendant responds to the allegations made in the plaintiff’s complaint that initiates the lawsuit.
Arbitration: The process by which parties agree to resolve their disputes outside of court, using the services of an experienced third party arbitrator who is authorized by the parties to make decisions about the resolution of the issues. Arbitration is governed exclusively by the parties’ agreement to arbitrate and the arbitrator’s decision is usually binding upon the parties.
Child Support Guidelines: In child support cases in which the combined gross incomes of the parents do not exceed $300,000 per year, a court is likely to refer to a table of child support numbers called the North Carolina Child Support Guidelines. Although the court may deviate from these guideline amounts, they are presumptive and relied upon by the court in arriving at an appropriate child support award.
Cohabitation: The act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, and which include but are not necessarily dependent upon, sexual relations. Cohabitation may be relevant to the issue of alimony entitlement.
Complaint: The pleading filed by the plaintiff initiating a lawsuit. It is a request for relief from the court, and sets out the issues that the plaintiff wants the court to resolve.
Consent Order: An agreement of the parties that is memorialized as a court order bearing the signature of a judge. Attorneys for the parties will determine the best instrument or instruments for recording the settlement terms. Some agreements are memorialized with consent orders and some with separation agreement and property settlement contracts and some with both.
Counterclaim: The pleading in which the defendant requests relief against the plaintiff. It is essentially the defendant’s complaint against the plaintiff in the same lawsuit brought by the plaintiff.
Criminal Conversation: This is a civil tort action that a spouse brings against the girlfriend or boyfriend of the other spouse for having sexual relations with that other spouse.
Dependent Spouse: The spouse who, for the purposes of postseparation support or alimony, is determined to either be actually substantially dependent on the other spouse for financial support or substantially in need of financial support to maintain a certain pre-separation lifestyle.
Divisible Property: Property that must be divided pursuant to an equitable distribution claim and that is the product of post-separation changes to marital property. Divisible property includes passive increases and decreases in the value of marital property, such as interest and dividends. It also includes any property received after the date of separation which a party had a right to before the separation and which was acquired as the result of efforts of either or both parties during the marriage. Increases in marital debts related to financing charges and interest accrued since the date of separation are divisible property.
Divorce from Bed and Board: A court-ordered separation.
Equitable Distribution: The legal rules and procedures under North Carolina law for classifying, valuing and dividing marital property and debts.
50-B: The chapter of the North Carolina General Statutes that provides for domestic violence relief. 50-B is a shorthand reference to its location in the Statutes. This chapter provides expedited relief to protect spouses, children and other people in personal relationships who have experienced violence or are facing the prospect of violence.
Joint Custody: This term may refer to either joint legal custody or joint physical custody, or to both. There is no precise statutory definition of joint custody, so parties and the court must clarify what is intended. Joint legal custody involves a common joint decision-making arrangement whereby the parents are required to consult with each other on major issues involving the children. “Joint physical custody” is defined in the North Carolina Child Support Guidelines as a residential schedule for the children providing that each parent has the children residing with him and her for more than 122 nights (one-third) per year.
Judgment: A final written decision of the court regarding the litigated issues.
Jurisdiction: The authority vested in the court to hear an action. If the court does not have jurisdiction, the action cannot proceed. A court must have jurisdiction over both the subject matter of the complaint and over the parties themselves.
Litigation: A court action and the use of the court system to determine the outcome of contested issues.
Marital Property: As defined by the North Carolina Equitable Distribution statute, property acquired during the marriage through the efforts of one or both spouses between the date of marriage to the date of separation, excluding gifts and inheritances received by one party from someone other than the spouse.
Marital Misconduct: Behavior during the marriage that may later influence a court’s decision regarding postseparation support, alimony and divorce from bed and board. Marital misconduct includes physical or financial abandonment, turning the other spouse out of the marital residence, indignities, excessive drinking or drug use, waste of money, adultery, and cruel or barbarous treatment.
Mediation: The process by which parties attempt to resolve a dispute outside of the court system, through a negotiation-styled settlement conference with the assistance of a third-party settlement facilitator. Unlike an arbitrator or a judge, the mediator has no authority and if the parties fail to reach a settlement, the parties may proceed to trial.
Order: A written interim directive of the court. An order is similar to a judgment except that, unlike a judgment, an order does not finally dispose of the entire case.
Post Separation Support: Spousal support paid either until a specific date set forth in a court order or until an order is entered either awarding or denying alimony, whichever occurs first.
Qualified Domestic Relations Order (QDRO): This is an order required by the Internal Revenue Service when dividing assets in certain types of retirement plans to avoid adverse tax consequences.
Separate Property: As defined by the North Carolina Equitable Distribution statute, property that belongs to one party and is not subject to division by the court. Generally, this is property that a party either owned prior to marriage, acquired after the date of separation or acquired as a gift or inheritance from a third party at any time. Debts are classified as separate if they were incurred prior to the marriage, after the date of separation or at anytime for a non-marital purpose.
Separation: A physical residential relocation of one spouse.
Service: The delivery to the opposing party of a pleading or some other legal document related to the lawsuit. This is a necessary process if the document is to have any legal significance.
Separation Agreement and Property Settlement A written contract memorializing terms to which the parties have agreed. A case may be resolved with one or more such contracts. Unless the contract specifically provides that it is to be incorporated into a court order or judgment, the contract will not be reviewed or filed with the court.
Summons: A document notifying a party of a court action and requiring that a party respond within a certain time frame. It is issued by the clerk of court and usually is served by the sheriff or by certified mail to the individual named on the summons. It is typically served with the complaint.
Supporting Spouse: The spouse upon whom the other spouse is actually substantially dependent for financial maintenance and support or from whom such spouse is substantially in need of financial maintenance and support.