Alternate Dispute Resolution (ADR) - Ways of making decisions and resolving disputes, other than litigation (contested hearings); includes Collaborative Practice, mediation, parenting coordination, arbitration, and neutral evaluation.
Child Custody - This refers to rights regarding a child. There are two different types of custody – legal custody and physical custody – and there are also different variations of custody - sole custody and joint custody. The most common form of custody is Joint Legal Custody.This is where the children live with one parent (residential custodian) while the other parent has visitation rights. With Joint Legal Custody, both parents make the decisions on behalf of the children concerning health, education, religion, and general welfare.
Child Specialist - An experienced, licensed therapist with specific education and training in the expected behaviors, stages, challenges and tasks of the development of a child. They work with the child (ren) to address specific emotional and practical day-to-day needs as they relate to the divorce process. The Child Representative also helps in designing the parenting plans that specifically address the defined needs of the child (ren) as they go through the restructuring of the family.
Child Support - A set amount of money paid by the non-custodial parent to help support their children after a divorce. The money is paid through a state agency to the custodial parent.
Child Visitation - Child visitation, often pursuant to a parenting plan, can take a variety of forms or schedules; two of the most common are reasonable visitation, which leaves it up to the parents to specify dates and times, and scheduled visitation, which is a fixed schedule. Visitation arrangements normally include some if not all of the following basic provisions:
- Alternate weekend visitation with the non-custodial parent, including "three-day holidays"
- Mid-week visitation with the non-custodial parent
- Sharing of the child during periods of school recess - winter, spring and summer (often split 50-50)
- New Year's Eve, Easter, Rosh Hashanah, Yom Kippur, Thanksgiving, and Christmas are the kinds of holidays spent with one parent one year, the other parent the next
- Mother's Day is spent with the mother, Father's Day with the father
- Parents alternate years on the child's birthday
- Open and frequent telephone contact by the parent who does not have physical custody of the child
- Exchange of a few days of visitation here and there, as mutually agreed, without the need for a modification of the court order
Emergency situations would potentially require the other parent to take temporary physical custody of the child.
Collaborative Attorney - An individual trained in the practice of Collaborative Law to aid couples in the dissolution (divorce) process. The Attorney addresses the legal issues that a couple faces in seeking a divorce. Through problem-solving negotiations that do not include adversarial techniques or tactics, the attorney advises clients concerning applicable law and its effect on them and helps them draft agreements in the spirit of cooperation.
Collaborative Divorce – See Collaborative Practice; Collaborative Law. Collaborative Divorce is based on Collaborative Practice principles and the commitment to resolve all disputes out of court. The Collaborative Divorce Team may include other professionals in addition to attorneys, such as coaches, child specialists and financial specialists.
Collaborative Law – Collaborative Law describes the legal component of Collaborative Practice, made up of the spouses or parties and their attorneys. It consists of two clients and their respective attorneys working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues. All negotiations take place in “four-way” settlement meetings that both clients and both lawyers attend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, both collaborative lawyers are disqualified from further participation. Each client has built-in legal advice and advocacy during negotiations, and each lawyer’s job includes guiding the client toward reasonable resolutions. The legal advice is an integral part of the process, but all the decisions are made by the clients. The lawyers generally prepare and process all papers required for the divorce.
Collaborative Team - A Collaborative team is the combination of professionals that the couple chooses to work with to resolve their dispute. It can be simply the couple and their Collaborative lawyers. In addition to Collaborative lawyers, the couple can choose to include a neutral financial professional (financial counselor), a divorce coach, a child specialist, or other specialists they believe would be helpful. The "Collaborative team" guides and supports the couple as problem-solvers, not as adversaries.
Contested Divorce – A contested divorce is one in which the husband and wife cannot come to an agreement on one or several issues related to the termination of their marriage. Where the partners cannot come to an agreement, even with the aid of their respective counsels, the couple must then take their issue(s) to a court to be decided.
Conventional Divorce – In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional divorce spouses often come to view each other as adversaries, and the divorce may be a battleground. The resulting conflicts take an immense toll on emotions—especially the children’s.
Custody Agreement - The purpose of the custody agreement is to reach an understanding on how to raise and care for the child with both parents sharing in the responsibilities and maintaining involvement in the day-to-day life of the child. For the custody agreement to work it is essential that both parents be flexible. Every attempt should be made to encourage and respect the relationship of the child and the other parent. Parents should keep in mind that they are getting the divorce; they are not divorcing their children. If parents can't come to an agreement on custody, then they will need to be prepared for a custody battle.
Divorce - Divorce is a legislatively created, judicially administered process that legally terminates a marriage no longer considered viable by one or both of the spouses. Divorce is also known as dissolution of marriage. Traditionally, divorce was fault-based. In other words, there was an "innocent or injured" party and a party that had done "wrong" with the "innocent" party being able to obtain relief or a divorce. This system was adversarial in nature. Even if both parties wanted a divorce, one party had to allege wrongdoing by the other. In the 1970s this system was reformed and a "no-fault" system was put in place.
Divorce Coach – A Divorce coach is a skilled professional, trained to manage a wide variety of emotions and issues that arise during divorce. Collaborative Divorce Coaches are all licensed mental health professionals (for example, psychologists, social workers, marriage and family therapists). Each Coach is experienced in the area of divorce and each Coach receives specialized training in Collaborative Divorce and the Collaborative process. Divorce coaching is not legal advice and not therapy. Divorce coaching is not about placing blame, finding fault or dealing with the past.
Divorce Decree – A court’s formal order granting a termination of marriage. If a divorce case goes to trial and the judge issues a judgment, the judgment is confirmed when the decree is signed and dated by the judge and court clerk.
Divorce Filing – A divorce starts with state-specific divorce papers or forms. Each state has unique divorce laws, which means the filing procedure and the divorce paperwork will vary from state-to-state. Sometimes the difference is significant and other times it will only vary slightly. The divorce forms are typically formatted differently but also have unique titles, like a Divorce Complaint rather than a Petition for Divorce or a Judgment rather than a Decree. Sometimes a filing spouse is referred to as the Petitioner and other states it is the Plaintiff. If the spouses can agree on the terms of divorce, including grounds for divorce, division of marital property, etc. then they may be able to expedite the process by filing a formal settlement agreement with the court. If they cannot agree on some or all of the terms of the divorce, then they will have to file the appropriate documents with the court so that a hearing can be held to resolve the issues.
Divorce Litigation – Litigation is a legal term meaning ‘carrying out a lawsuit.’ The word 'litigation' comes from the Latin word 'litigatus' meaning 'to dispute, quarrel, strive". In a divorce, litigation can be very destructive to the parties and their children. The advantages of Collaborative Practice over traditional divorce litigation include:
- Lower Cost: The collaborative process is generally less costly and time-consuming than litigation.
Client Involvement: The clients are a vital part of the settlement team and have a greater sense of involvement in the decision making which affects their lives.
- Supportive Approach: Each client is supported by their lawyer and coach in a manner that still allows the attorneys to work collaboratively with one another in resolving issues.
- Less Stress: The process is much less fear and anxiety producing than utilizing Court proceedings or the threat of such proceedings. Everyone can focus on settlement without the imminent threat of "going to Court".
- Win-Win Climate: The Collaborative process creates a positive climate that produces a more satisfactory outcome for both parties. The possibility actually exists for participants to create a climate that facilitates "win-win" settlements.
- Speed: The speed of the collaborative process is governed by the parties rather than court calendars.
- Creativity: The collaborative process encourages creative solutions in resolving issues.
- Clients in Charge: The non-adversarial nature of the collaborative process shifts decision making into the hands of the clients where it belongs, rather than into the hands of a third party (the court).
Divorce Order – Final order made by a court in a divorce case. On taking effect, a divorce order legally ends a marriage.
Divorce Process: Jurisdiction - Before a divorce is filed, a determination must be made where the matter will be heard. Different states have different rules for bestowing jurisdiction. In many states, a party must have lived in that state for 180 days prior to filing. If there are two possible jurisdictions, it may benefit the party filing to serve the Divorce documents first to choose jurisdiction in their state. That is the primary benefit of serving and filing first. There is little benefit to serving and filing first other than to prepare in advance and to choose the jurisdiction.
Divorce Process: Summons - The Summons is a document announcing that a divorce or legal separation action is being commenced. In some states, that document also indicates that from that point forward neither party may dispose of marital assets, change insurance coverage or modify any other significant holdings except for the necessities of life.
Divorce Process: Petition - The Petition has two parts. The first part is a statement of facts which sets out basic facts such as the identities of the parties, whether they have children and what assets they may hold. The second part of the Petition seeks relief such as an award of custody, spousal maintenance or child support and a division of assets and debts. The Petition is often tailored to seek the maximum relief. It is a positioning paper that will often seek as much relief as the proponent could possibly seek.
Divorce Process: Answer & Counter Petition – In the divorce process, the opposing party has thirty (30) days in most states to submit an answer to the divorce petition. The Answer is very simply the opposing party’s statement of facts and request for relief. Often the service of an Answer is waived. This is often done to save the parties the cost of an additional filing fee should the matter be settled. However, if a waiver or extension is not granted by the opposing party and an answer is not filed within thirty (30) Days, the original party may seek a default. A default means that the original moving party may request the relief requested in their petition without opposition. Late answers are often accepted since Courts prefer determining cases on their merits rather than by default.
Divorce Process: Temporary Hearing - A temporary hearing may also be called a Pendente Lite Hearing. Such hearings may be scheduled by either party by filing a Motion supported by an affidavit. Temporary/Pendente Lite hearings are designed to resolve issues while the divorce is pending such as who will have:
- Temporary custody
- Temporary support and/or maintenance
- Where the parties are going to reside pending the resolution of the case
- Protection from harassment and domestic violence
- Injunctions against financial improprieties
- Use of assets
Divorce Process: Mediation – Many courts require the parties to attempt to mediate their disputes before the matter is submitted to the Court. One exception to this rule may be where domestic abuse has occurred. Mediation may occur between the parties of with attorneys present. Mediation means that the parties visit with a qualified neutral who will attempt to get them to resolve their differences. In mediation, the neutral is not an advocate and will not provide legal advice. Most discussions that occur in mediation are not admissible in Court under the public policy consideration that favors a free exchange of information between the parties to help them resolve their differences.
Divorce Process: Co-Parenting Classes - Many states have adopted a policy that requires parents to attend co-parenting classes where children are involved. The goal is to teach parents how to minimize the impact on children involved in a divorce. In most cases, the parents need not attend together. Some states also require that children of a certain age attend a class to teach them the skills to deal with divorcing parents.
Divorce Process: Discovery - Discovery refers to the "investigation" phase of the divorce process. It is primarily dedicated to identifying the contested issues, a determination of assets, income and debt of the parties. This exchange of information can be conducted informally with the parties agreeing to freely exchange the information or, formally, through the submission of formal documents that require answers under oath.
Divorce Process: Experts - Experts are often employed to determine certain facts. Those experts may be jointly agreed upon by the parties, which can save on the cost of having individual experts testify at trial. However, where that is not possible, each side may hire an expert to contest an issue and require their testimony at trial. Common experts include:
- custody evaluators
- financial planners to determine future economic circumstances
- business evaluators to value businesses
- real estate appraisers to value real estate
- personal property appraiser to value furnishings and other assets (generally an auctioneer experienced in home goods)
- vocational evaluator to determine earning capacity
- psychologists to testify to mental health issues
Divorce Process: Settlement – A divorce or legal separation case may be resolved at any time the parties come to an agreement on the issues. In such cases, the parties would sign a Marital Settlement Agreement or some other form of stipulation resolving their issues. This can occur right up to the point of trial.
Divorce Process: Settlement Conference/Pretrial - Settlement or pretrial conferences are scheduled by the Court. In such conferences, the Court may require each party to submit a pretrial statement of the case and issues. In such hearings, the Judge will meet with the lawyers and/or parties to discuss the issues and to make settlement recommendations.
Divorce Process: Trial - If the spouses are unable to settle the case, it will go to trial. Some states have a trial by jury. Other states have a trial by Judge. At trial each party tells their story to the judge. It is told through testimony, the testimony of other witnesses, and documents called exhibits. At trial, the moving party (usually called the petitioner or plaintiff) presents their case first. They call their witnesses who are subject to cross-examination by the opposing party. When the plaintiff or petitioner rests their case, the Respondent or Defendant presents their own case with witnesses and evidence, each subject to cross examination by the opposing party.
Divorce Recovery – Recovering from a divorce and the ending of a close relationship is not easy. There’s an adjustment process after a divorce; and there are many resources available to help along the way. See Divorce Support
Divorce Rights - Divorce rights involve many aspects of the divorce process and can vary from state to state. Divorce rights primarily involve each party’s right to divorce, to property distribution and child custody rights. Divorce rights have changed significantly throughout history and are still in flux today. Divorce rights are often best protected and maximized with the help of a trained professional family law attorney. These experts can help people discover what their divorce rights are based on their specific circumstances and the laws that govern divorce in their state of residence.
Divorce Support – Divorce is one of life’s most difficult experiences. To find help and healing for the hurt of separation and divorce, there are many sources of support, including:
- The Collaborative Team guiding and supporting you through the divorce process
- Divorce support groups
- Divorce recovery groups
- Programs for children of separating or divorcing parents
- Websites dedicated to supporting divorcing couples and restructuring families through online forums and resources
- Divorce Counseling; Marriage and Family Therapy
- Close friends
- Articles, books, stories about and by divorcing/divorced couples
Effects of Divorce - The effects of divorce can change virtually every aspect of people’s lives, including where they live, with whom they live, their standard of living, their emotional happiness, their assets and liabilities, time spent with children and other family, and so much more. Some effects of divorce can be positive, such as ending an unhappy or even abusive relationship. Other effects of divorce can be detrimental to personal well-being.
Effects of Divorce on Children - Divorce affects children differently, depending on their gender, age and stage of development. Their world, their security and their stability seems to fall apart when their parents divorce. Following are universal responses that researchers have found among children of divorce.
- They worry that their parents don't love them anymore and they feel abandoned. They feel like the parent who left has divorced them too.
- They feel powerless and helpless because they can't get their parents back together. They can't speed up or slow down the process.
- They feel angry although they may not express their anger.
- They often feel they are at fault. They may believe something they did or said caused a parent to leave.
- They grieve. Divorce is a loss in the lives of children and parents. They experience a grieving process very similar to mourning a death.
- They experience conflicts of loyalty.
- Acting out behavior ranges from very mild behavior, such as difficulty sleeping, to extremely destructive behavior, such as suicide, drug abuse, or violence.
- Other behaviors may include problems in school, nervous habits, repetitive physical behaviors, and regressive behaviors such as bed-wetting, fears, and use of comfort items. Children may become clingy and whiny and they may need greater understanding of their moods and behavior. They have a greater need to be nurtured.
- They may think they have to "take care" of their parents. Giving up one's childhood to care for emotionally troubled parents is a widespread characteristic in children of divorce.
- These behaviors are common for children experiencing divorce. There is a false assumption that children are "naturally resilient" and can "get through" a divorce with little or no impact on their lives. Instead, they need support systems and individuals to help during the transition.
Family Law - An area of the law that deals with family-related issues and domestic relations including, but not limited to:
- the nature of marriage, civil unions, and domestic partnerships;
- issues arising during marriage, including spousal abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction
- the termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsibility orders (in the United States, child custody and visitation, child support awards).
Financial Counselor - This professional acts as a neutral party who assists both spouses in gathering all the financial information about the couple or family in a supportive and nurturing environment. Each client is encouraged to assist in financial disclosure and documentation of the income, expenses, assets, and debts of the family. The essential shift is from a data focus to a system focus, whereby the financial counselor listens and then helps the clients understand the overall picture created by their particular family's financial situation. The knowledge gained by the clients through the data collection and documentation can aid each partner in achieving the financial settlement he/she desires.
Financial Planner/Financial Advisor/Estate Planner - Certified professionals who work in the field of accounting, insurance, or investments. They advise clients on how to invest their money to get the best return on their dollar based on their own tolerance for risk. They can facilitate retirement planning, long-term financial investment and life insurance needs.
Four-way Meeting(s) – The Collaborative Process is conducted through a series of four-way meetings with both parties and their Collaborative attorneys. The sessions are intended to produce an honest exchange of information and expression of needs and expectations. The well-being of any child(ren) is especially addressed. Mutual problem-solving by all the parties leads to the final divorce or marital settlement agreement. When additional professionals are added to the Collaborative Team, these sessions may become five-way or six-way meetings.
Grounds for Divorce - Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony. The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground
- desertion for a specified length of time
- confinement in prison for a set number of years, and
- physical inability to engage in sexual intercourse, if it was not disclosed before marriage.
Guardian ad litem – Guardians ad litem are often appointed in divorce cases or in parenting time disputes to represent the interests of the minor children. The kinds of people appointed as a guardian ad litem vary by state, ranging from volunteers to social workers to attorneys to others with the appropriate qualifications. The two divorcing parents are usually responsible for paying the fees of the guardian ad litem, even though the guardian ad litem is not responsible to them at all. In some states, the county government pays the fee of that attorney. The guardian ad litem's only job is to represent the minor children's best interests.
Interest-Based Negotiation – Also called “interest-based bargaining” or "win-win bargaining," interest-based negotiation is a negotiation strategy in which parties collaborate to find a "win-win" solution to their dispute. This strategy focuses on developing mutually beneficial agreements based on the interests of the disputants. Interests include the needs, desires, concerns, and fears important to each side. Interest-based negotiation is important because it usually produces more satisfactory outcomes for the parties involved than does positional bargaining.
Joint Custody - Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
- joint legal custody
- joint physical custody (where the children spend a significant portion of time with each parent), or
- joint legal and physical custody.
It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.
Legal Custody - refers to the right as a parent to make decisions about a child’s health, well-being and education. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.
Marital Settlement Agreement - A Marital Settlement Agreement is a written document that outlines the divorcing spouses’ rights and agreements regarding property, support and children. All forms are signed by both spouses and witnessed by a notary public. The issues that must be resolved by the spouses and outlined in the Marital Settlement Agreement include:
- Division of assets and other property
- Repayment of debt and monies owed to creditors
- Alimony, child support, custody
In a no-fault divorce, the judge will not decide any of these issues for you. These issues are solved voluntarily between the spouses.
Marriage and Family Therapist - A licensed mental health professional (Marriage and Family Therapist, Psychologist or Social Worker) trained in the assessment and treatment of emotional, personality and or relationship difficulties. The therapist may function to help a person move through the transitions of the divorce process. A therapist can help individuals when they are facing emotions that may be overwhelming and interfering with day-to-day functioning. The therapist may also assist a client dealing with underlying core issues that are being triggered and surfacing due to being in the dissolution process.
Mediation - A method of resolving disputes, in which a trained, neutral person (the mediator) helps the parties work out the solution for themselves. The mediator cannot give either party legal advice or be an advocate for either side. If there are lawyers for each party, they may or may not be present at the mediation sessions, but if they are not present, then the parties can consult them between mediation sessions. When there’s an agreement, the mediator may prepare a draft of the settlement terms for review and editing by both parties and their lawyers. If mediation doesn’t result in a settlement, the parties may choose to use their counsel in litigation, if this is what they and their lawyers have agreed.
Mediator - A neutral, impartial person who is trained in negotiation, conflict resolution and communication skills. The mediator does not represent any party or take sides, nor does he/she act as an attorney, judge, coach or therapist. He/she explains the mediation process to the parties, and assists divorcing couples to clarify issues, concerns, interests, needs and values. The mediator brings in and works with various professionals as needs arise.
No Fault Divorce - "No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault." To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this goes by such names as "incompatibility," "irreconcilable differences" or "irremediable breakdown of the marriage"). In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.
Physical Custody - refers to the right as a parent to have the child living in his or her home.
Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine. Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.
Positional Bargaining - This type of negotiation strategy is based on fixed, opposing viewpoints (positions) and tends to result in compromise or no agreement at all (impasse). Often, compromises do not efficiently satisfy the true interests of the disputants. Instead, compromises simply split the difference between the two positions, giving each side half of what they want. Creative, integrative solutions achieved through interest-based negotiation or interest-based bargaining, on the other hand, can potentially give everyone all of what they want.
Prenuptial agreement - Also referred to as a “premarital agreement”, this is a legal document that dictates how property and debt will be split should the parties decide to divorce at some future time.
Separation – The terms “divorce” and “separation’ are often incorrectly used interchangeably. A separation is when marriage partners sever their relationship with the intent of ending the marriage. Separation does not have much legal effect in and of itself.
Sole Custody - One parent can have either sole legal custody or sole physical custody of a child. Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect. However, in most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children's lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.
Spousal support - Also called “alimony” and “spousal maintenance”, this term refers to money paid to one spouse by another to help the lesser-earning spouse maintain a certain standard of living. Spousal support is most common in situations where one spouse makes considerably more than the other.
Uncontested divorce - An uncontested divorce is one in which all issues have been agreed upon by the parties. The parties reduce their agreement to writing and it is presented to a Judge at the final hearing. An uncontested divorce can be achieved by the parties working on their own or through mediators and collaborative lawyers as well as lawyers working in the traditional context. Often, cases which are contested on one or more issues end up being uncontested when the parties settle after a period of adversarial litigation. In fact, the vast majority of divorce cases are settled by agreement. But what occurs in the course of litigation prior to the settlement can be damaging to the family relationships and resources.
Zealous advocacy - In the zealous advocacy model, lawyers are taught to argue for the best result they can get for a client, without regard to how it effects or damages others. The adversary system is revered as an "engine" for discovering the truth. In theory, if each adversarial attorney pushes as hard as he can for his client, the truth will rise from the fray and justice will result. This model may be necessary and effective in criminal law cases, for instance, but in family law cases, zealous advocacy can escalate hostilities and the family can be injured as a result.