Dictionary of Divorce Terms
Divorce is a confusing process at best.
Legal language and related words often have precise meanings that don’t easily translate for the couple going through divorce.
I developed this dictionary to help my clients and reduce their confusion.
What Divorce Is
- Divorce: The legal process that ends a marriage and details the terms of dividing marital assets and debts and the care of the children (if any). A Divorce (even an uncontested or no-fault divorce) is a lawsuit in which certain paperwork needs to be signed (decreed) by a judge to be final. As with any lawsuit, there is a Plaintiff and a Defendant in Divorce.
- Plaintiff: The person in the marriage initiating the Divorce action.
- Defendant: The other person in the marriage involved in creating and agreeing to the terms of the Divorce.
Kinds of Divorce
- Uncontested Divorce: When both parties agree to all terms and conditions of the Separation and Divorce Agreement without court intervention.
- Litigated Divorce: When both parties disagree about the terms and request court intervention to resolve their issues.
Paths to Divorce
- Having Grounds for Divorce: The label used indicating whether you have eligibility to end your marriage. There are four “fault grounds” for Divorce that assert that one spouse was at fault regarding ending the marriage. Since NY State became a no-fault state in 2010, very few people still use Fault Grounds.The specific Fault Grounds are:
- Abandonment (after one year of living apart)
- Cruel and Inhuman Treatment
- Adultery
- Incarceration of a Marriage Partner for more than 3 years
- No-Fault Divorce: Either party asserts that the marriage has been irretrievably broken for more than six months (in the past). No further explanation by either party is needed.
- Legal Separation: Initiated when a signed Separation Agreement (see below) is filed in the relevant NYS County Clerk’s office. A Legal Separation can be converted to a Divorce after one year from the filing date.
Key Divorce Documents
- Separation Agreement: A legally enforceable contract that covers everything from custody of the children; Child Support; a Parenting Plan; Spousal Maintenance (Alimony), if appropriate; and the equitable distribution of all the assets and debts. It is used as the foundation for the Legal Separation or Divorce filing.A Separation Agreement can be created in two ways:
- The couple works with a trained mediator to create a Memorandum of Understanding, which then becomes the Separation Agreement.
- The couple works with attorneys to create the Separation Agreement.
- Memorandum of Understanding (MOU): The document prepared by a mediator that summarizes all of the decisions and agreements reached by a couple in divorce mediation. The completed MOU becomes the Separation Agreement. Working with the mediator to create the MOU usually costs significantly less than developing it through attorneys.
Decision-Making Control Concerning the Children
- Joint Custody: Both parents agree to make the major decisions concerning their children. Both parents have equal legal power regarding the children.
- Sole Custody: One parent has the legal power to make all the major decisions concerning a child. This does not include modifying a parenting plan that is part of a divorce decree.
Parenting Plans
- Primary Residential Parent (PRP): Based on the Parenting Plan (part of the Separation Agreement), the PRP is the parent who has more time (usually overnights) with the child(ren).
- 50:50 Shared Parenting Plan: Based on the Parenting Plan (part of the Separation Agreement), each parent has virtually the same amount of time (overnights) with the child(ren), and there is no formal designation of a PRP.
- Emancipation: Events in a child’s life that occur before age 21 and eliminate the need for either parent to provide Child Support. The primary events are joining the military, marrying, or not going on to higher education after high school and being self-sufficient.
Child Support
The amount of money that the non-residential parent pays to the Primary Residential Parent (see above) based on the number of children in the household. Child support is intended to help with overall household expenses as well as specific, directly related expenses of a child such as clothes, haircuts, and other ordinary expenses.
Spousal Maintenance/Alimony
These terms are generally used interchangeably and refer to sharing money between spouses in addition to Child Support or regardless of Child Support. That money is used by the recipient to maintain approximately similar standards of living between ex-spouses for a specified period of time.
Types of Services to Guide you Through a Divorce
- Divorce Mediation: A process in which a trained third party guides a couple through the conversations they need to create an agreement. A mediator provides information about the relevant state and federal guidelines and helps clients draw up a Memorandum of Understanding.
- Collaborative Law: A process where each spouse selects an attorney and all four meet together to create a Separation Agreement. The participants agree not to use the court system. If the court system is used, the Collaborative Law process ends.
- Litigation: A process where each spouse has an attorney and the couple is unable to resolve the issues. The attorney(s) then use the court system and, ultimately, a court trial presided by a judge to decide the issues.
Retirement Terms
- Defined-Benefit Pension Plan: An employer-sponsored retirement plan where employee benefits are sorted out based on a formula using factors such as salary history and duration of employment. For more information on how such a plan is assessed as an asset in a divorce, please visit Anything But My Pension: Divorce Math.
- Defined-Contribution Pension Plan: A retirement plan in which a certain amount or percentage of money is set aside each year by a company (via a 401(k), for example) for the benefit of the employee. There is no guarantee by the employer concerning whether or how much of the money will be available to the employee at retirement. For more information, please visit A Price Tag on Emotions: Divorce Math.
- Qualified Domestic relations Order (QDRO): A court-ordered document that authorizes New York State to pay your former spouse the agreed-upon portion of your employer-sponsored retirement fund when you retire. (The portion was stated in the Divorce Agreement when the Divorce became final.) For more information on QDROs, please visit Anything But My Pension: Divorce Math.
Resources
Disclaimer: Please consult your attorney for detailed information about these terms. Obtain their advice on whether or how any of them applies to your situation before you take any action.
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