Divorce is stressful. Trying to understand the legal lingo can make the stress levels even higher. This glossary of some of the most common terms you will encounter during your divorce proceedings can help alleviate at least some of the stress.
Divorce is simply the legal process for ending a marriage. You may encounter some or all of these terms throughout the divorce proceedings.
Also known as spousal support or maintenance, alimony is monetary compensation paid by one spouse to the other. It is not guaranteed that the court will order alimony to be paid to either spouse.
Whether the court awards alimony depends on a number of factors, including length of the marriage, the earning capacity of each spouse, and whether one spouse left the workforce to raise the children.
There are five types of of alimony:
- Rehabilitative. Rehabilitative alimony is designed to help one spouse become self-sufficient, and is usually awarded to a spouse who left the workforce to raise the couple's children. Rehabilitative alimony ends when the spouse becomes self-sufficient.
- Reimbursement. If one spouse supported the other through college, the court may order reimbursement alimony to be paid to the spouse who worked to pay for the college degree, based on the idea that she will now not reap the rewards of her investment.
- Permanent. Permanent alimony is paid indefinitely to one spouse. This type of award is usually made in the case of a disabled or ill spouse, or one who is the primary caregiver for a disabled or ill child, who will be unable to become financially self-sufficient due to the disability or illness.
- Separation. Separation alimony is awarded during a period of separation. It is awarded to the spouse with less financial means to support themselves during the separation period.
- Lump-sum. This type of alimony is paid in lieu of a distribution of certain marital assets. Once the payment is made, usually right before or right after the judge signs the divorce decree, no further payments are required.
An annulment declares the marriage to be void and, in the eyes of the law, never took place. Each state has its own criteria for when a marriage can be legally annulled.
It is important to remember that a church annulment is not the same as a legal annulment. You may be able to have the marriage annulled under the rules of your particular religion, even though it does not meet the legal criteria for an annulment, and vice versa.
Common Law Marriage
Common law marriage occurs when a couple lives together and claims to be husband and wife for a specified period, despite never having entered in to a legal marriage or commitment ceremony.
Contrary to popular belief, common law marriage is not permitted in every state. Only eight states - Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas and Utah - have statutes permitting common law marriage. Court decisions in three other states - Alabama, Rhode Island and Oklahoma - have upheld the validity of common law marriage, though it is not provided for under state law.
Florida, Georgia, Indiana, Ohio and Pennsylvania have abolished statutes permitting common law marriage. However, these states continue to recognize common law marriages entered in to prior to the date the laws were abolished.
If you live in one of these states and meet the criteria for a common law marriage, you can utilize the state's divorce proceedings at the end of the relationship. If your state does not recognize common law marriage, divorce proceedings are unnecessary.
Dissolution is often used interchangeably with divorce. In Illinois, for example, couples file for dissolution of marriage, rather than divorce. In other states, dissolution is a simplified process that puts the couple on a fast-track to divorce.
In states that differentiate between dissolution and divorce, a couple can only file for dissolution if the marriage meets certain criteria, or if the couple agrees on all issues and only need the judge to sign the order ending the marriage.
Grounds for Divorce
In all divorce proceedings, you must state the grounds for divorce - that is, the legal basis for the divorce. These vary by state, but may include:
- Physical or emotional cruelty
- Incarceration for a period of several years
- Failure to disclose the physical inability to engage in sexual intercourse before the marriage
Many states also allow for a no-fault divorce, which is where the person filing for divorce does not have to prove that the other spouse did anything wrong. In a no fault divorce, you must simply state that the two of you cannot get along. This is often referred to as irreconcilable differences or incompatibility of temperament.
If you and your spouse no longer wish to be married, but divorce is not an option - either for religious or financial reasons - some states allow for a legal separation. Different from a trial separation, a legal separation follows the same procedures as a divorce, except that at the end of the proceedings, the couple remains married.
An uncontested divorce occurs when both spouses agree on all issues related to property distribution and child custody (if children are involved).
If you and your soon-to-be ex-spouse had children, you will need to decide who will have custody of the children. Issues regarding custody and child support do not necessarily end when the court issues an order - both can change throughout the years depending on circumstances.
Child support is money that one parent must pay to help the other parent with the expense of raising a minor child. The non-custodial parent is usually the one ordered to pay support, but it is possible for the custodial parent to also be ordered to pay support.
The amount a parent must pay is generally determined using a statutory formula that takes into consideration how much money each parent makes and the amount of time the child will spend with each parent. The court can take other factors into consideration as well, including the relative wealth of each parent, any future children either parent may have, or specific needs of each child.
Child support should not be confused with alimony. Child support is for the benefit of a minor child, while alimony is for the benefit of someone who was economically dependent on his/her spouse during the marriage.
Legal custody refers to the parent who gets to make decisions regarding the child's health and well-being, including medical decisions, religious upbringing and where the child will attend school.
Parents can be awarded shared (joint) legal custody, meaning they have joint decision-making authority, or sole legal custody, meaning only one parent can make these decisions. Parents can have shared legal custody even if they do not have shared physical custody.
The non-custodial parent is the parent who does not have custody of the child. Generally, it refers to a parent who has neither legal nor physical custody of the child, but it is sometimes used to refer to the parent who does not have actual physical custody of the child at that specific time. For example, if one parent has physical custody of the child for the entire summer, the other parent would be considered the non-custodial parent during that time period.
Physical custody refers to the parent who is responsible for the actual, physical care for the child. Parents can be awarded primary or shared (joint) physical custody of the child. The technical legal term for primary and shared custody vary by state.
For example, in Alaska, parents are considered to have shared physical custody if one parent has the children 30% of the year, and the other has the children 70% of the year.
If a parent has sole custody of the child, they have both legal and physical custody.
Visitation refers to the time that the parent who does not have primary physical custody spends with the child.
Unless the marriage is of very short duration and no marital assets were accumulated, getting divorced means dealing with dividing assets.
Commingling of Funds
If property that you owned before your marriage has been commingled, or mixed, with marital property, it will be considered a marital asset. For example, if you had a savings account in your name prior to marriage, it would become marital property if you allowed your spouse to make deposits or withdrawals at any point during the marriage.
In community property states, money earned by either spouse, except for specific assets that are legally classified as separate, belong to both spouses equally. In these states it does not matter if one spouse keeps all the earnings from his job in a separate account; as soon as he receives the check, one-half of the assets belong to his wife.
Dissipation of Marital Estate
During divorce proceedings each spouse is prohibited from significantly reducing (dissipating) the size of the marital estate. Marital funds may only be used for regular, every day expenses that align with the couple's former spending habits, such as mortgage and car payments, medical expenses and other typical household expenses.
A spouse who is found to have dissipated marital funds can be forced to pay it back.
In non-community property states, the court must divide the marital estate based on what is most equitable under the circumstances. Equitable does not always mean equal. The court will take into consideration many factors, including the relative earning power of each spouse and the length of the marriage.
Marital property, also referred to as the marital estate, generally includes all assets acquired during the marriage, even if these assets are listed only under one spouse's name.
Separate property is property that each spouse came in to the marriage with, or certain assets the spouse acquired during marriage that are legally classified as separate property, such as an inheritance. These assets are not subject to division if the marriage ends in divorce.
Separate property can, however, be turned in to marital property if you allow marital funds to be added to it, put your spouse's name on the asset, or otherwise use it for marital purposes.
Whether you live in a community or non-community property state, before assets can be divided in a divorce they must be assigned a value. Valuation methods differ depending on the asset, and may include agreement of the parties, property appraisals or bank and brokerage statements.
Seek Legal Assistance
Even under the most amicable conditions, divorce can be an emotional, stressful time. Seeking the advice of competent legal counsel, or utilizing a self-help legal center at your local courthouse, can help answer any questions you have and make the process a little easier.