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ACTION – The legal
term for a Lawsuit.
AFFIDAVIT – A
written statement of facts made under oath and signed before a notary public.
AFFIRMATION – A
written statement of facts made by an attorney under penalty of perjury and
signed by him/her.
AFFIRMATIVE DEFENSE – Legal
defenses in response to a spouse's pleading, even if the allegations of the
Complaint were true.
AGREEMENT – A
transcribed or written resolution of the disputed issues.
ALLEGATION – Statement of facts contained
in a Pleading or Affidavit setting forth what the pleader intends to prove.
APPEAL – The process whereby a higher Court reviews the proceedings resulting
in an Order or Judgment of a lower Court and determines whether there was reversible
error. An Appeal is "taken" by serving and filing a Notice of Appeal
within 30 days after service of the Order or Judgment to be appealed. An Appeal
is "perfected" when all of the required papers are filed with the
Appellate Court.
APPEARANCE – The
formal submission by a Defendant to the jurisdiction of the Court after having
been served with a Summons. Appearance also refers to the physical presence
of a party at Court.
ANSWER – The Second
Pleading in an action for divorce, separation or annulment, which is served
in response to the Complaint and which admits or denies its allegation.
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CHANGE OF VENUE – A
change of the place where the case is to be tried.
CHILD SUPPORT – Support
for a child (not taxable to the recipient or deductible
to the payor spouse).
CLAIM – A charge by one spouse against the other.
COMPLAINT – The First
Pleading in action for divorce, separation, or annulment,
setting forth the allegations upon which the requested
relief is based.
CONDONATION – The adultery of a spouse
is not grounds for divorce if the complaining party forgives it, for example
continuing to cohabit with the offender.
CONTEMPT OF COURT – The
willful and intentional failure to comply with a Court Order, Judgment, or
Decree by a party to the action. Contempt of Court is punishable by fine or
imprisonment.
CONTESTED CASE – Any case where the Court
must decide one or more issues that are not agreed to by the parties. Cases
are considered contested until all issues have been agreed to.
CROSS-EXAMINATION – The questioning of
a witness presented by the opposing party on trial or at a deposition, to
test the truth of that testimony or to develop it further.
DECREE – The Final Ruling of the judge
on an action for divorce, legal separation, or annulment. Same as Judgment.
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DEFAULT ORDER OR DEFAULT JUDGMENT – An
Order or Judgment granted by the Court without the other
side's being heard because they failed to plead or submit
papers within the time allowed or failed to appear at
the hearing.
DEFENDANT – The
one who defends the Lawsuit brought by another. Same as
Respondent.
DEPOSITION – The
testimony of a witness taken out of Court under oath and
reduced to writing. Depositions are taken for the purpose
of discovering the facts upon which a party's claim is
based; obtaining financial information or discovering the
substance of a witness's testimony prior to trial. The
deposition may be used to discredit a witness if he changes
his testimony. Depositions are used to preserve the testimony
of a witness who will be unable to appear at trial.
DIRECT EXAMINATION – The
initial questioning of a witness by the attorney who called
him to the stand.
DISCLOSURE – Procedures
followed by attorneys in order to determine the nature,
scope, and credibility of the opposing party's claim and
his/her financial status. Disclosure devices include depositions,
written interrogatories, and notices to produce various
documentation relating to issues which are decided in the
case. Psychological examinations, blood tests, and court
social-service investigations are also part of disclosure.
DISCRETION OF THE COURT – The
area of choice available to a judge to make a legally
acceptable decision on his interpretation of the evidence.
DISTRIBUTIVE AWARD – A
lump sum, tax-free payment ordered by the Court in lieu of or to supplemental
or facilitate a property distribution.
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EMANCIPATION – The
point at which a child comes of age. Children are emancipated
in Florida upon reaching the age of 21 or upon marriage,
leaving the custodial residence, or entering the armed
services. Emancipation terminates the duty to support.
EQUITABLE DISTRIBUTION OF PROPERTY – A
system of distributing property acquired by spouses during
their marriage in connection with a divorce or dissolution
proceeding. The division is based on a variety of equitable
factors, including length of the marriage, relative financial
contribution, contribution as a spouse and homemaker
and respective need. Title to property in the name of
either spouse does not necessarily restrict the Court's
right to award all or part of that property to the other
spouse as part of an Equitable Distribution.
EVIDENCE – Documents testimony or other
demonstrative material offered to the Court to prove or disprove allegations
in the pleadings or in issue.
EX PARTE – An application for Court relief
without the presence of the other party, due either to a lack of notice or
choice of the other party not to appear.
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FOUNDATION – The
evidence that must be presented before asking certain
questions or offering documentary evidence on trial.
GROUNDS FOR DIVORCE – The legal circumstances which must be proved before
a divorce can be granted, also called a "Cause
of Action."
HEARING – Any
proceeding before the Court where testimony is taken for the purpose of resolving
disputed issues.
HOLD-HARMLESS – When
one spouse assumes liability for a debt or obligation and promises to protect
the other from any loss or expense in connection therewith.
HOSTILE WITNESS – A witness who demonstrates
so much prejudice during direct examination that the party who has called
him is allowed to cross-examine. The greater flexibility of cross-examination
enables the questioner to ask leading questions and to attack the credibility
of the witness.
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IAS – The Individual Assignment System. Soon after an action is started,
the attorney(s) are required to file a Request for Judicial Intervention ("RJI")
with the Clerk of the Court. The case is then assigned,
by computer, to an individual judge who will handle every
aspect of the case to its conclusion.
IMPEACHMENT – The
act of proving either by prior inconsistent statement or
other conflicting evidence that a witness is lying.
INDEMNIFICATION – To
promise to reimburse another person in case of an anticipated
loss; the same as Hold-Harmless.
INJUNCTION – A Court Order forbidding someone
from doing a particular act which is likely to cause injury or property loss
to another party (same as a Restraining Order).
INTERROGATORIES – A
series of written questions served upon the opposing party in order to discover
certain facts regarding the disputed issues in a matrimonial proceeding. The
answers to Interrogatories must be under oath and served within a prescribed
period of time.
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JOINT PROPERTY – Property
held in the name of more than one person.
JUDGMENT – The
Order of the Court determining the action; same as Decree.
JURISDICTION – The
power of the Court to rule upon issues relating to the
parties; their children or their property.
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LEGAL SEPARATION – A
Judgment of the Court or written Agreement directing
or authorizing the spouses to live separate and apart.
Actions for legal separation provide for maintenance,
child custody, and support, but do not provide for Equitable
Distribution of marital property. A decree of separation
does not dissolve the marriage and does not allow the
parties to remarry.
LEVERAGE FACTORS – Particular
considerations, based on the priorities of the parties,
which induce them to settle disputed issues. The skillful
employment of these leverage factors generally controls
the successful outcome of a settlement.
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MAINTENANCE – Spousal
support (deductible to the payor spouse and taxable as
income to the recipient).
MARITAL PROPERTY – Accumulated
income and property acquired by the
spouses during the marriage, subject
to Equitable Distribution by the Court.
Property acquired by gift from third
parties or inheritance, and personal
injury recoveries is not marital property.
MISTRIAL – A trial
that is terminated prior to its completion, due to the occurrence of some fundamental
error that would render the trial invalid. Following a mistrial, the case must
be tried again from the beginning.
MOTION – A written application to the court
for some particular relief such as temporary support, injunction, or attorney's
fees, which is made upon advance notice to the other party.
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NO-FAULT DIVORCE – A
marriage-dissolution system whereby divorce is granted
without the necessity of one of the parties guilty of
marital misconduct.
NOTICE OF MOTION – A
paper which is served upon the other attorney or spouse
telling them that we are making a motion to the court on
a certain day.
OPTING OUT AGREEMENT – An
Agreement made before or during marriage providing for
the rights and obligations of the spouses, maintenance,
child support, property distribution in the event of
the dissolution of their marriage.
ORDER – The
Court's ruling on a Motion requiring the parties to do
certain things or setting forth their rights and responsibilities.
An Order is reduced to writing, signed by the judge and
filed with the Court.
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PERSONAL JURISDICTION – The
power of the Court to order a spouse to do a particular
thing such as pay maintenance or child support.
PLAINTIFF – The party
who files the Lawsuit.
PLEADING – Formal
written application to the Court for relief and the written response thereto.
Pleadings include complaints, answers, counterclaims, and replies.
PRAYER – That
portion of a pleading, at the end, which specifies the relief that is requested
of the Court.
PRIVILEGE – The
right of a spouse to make admissions to an attorney, clergyman, psychiatrist,
his/her spouse, a doctor or certified social worker which are not later admissible
in evidence.
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REBUTTAL – The
introduction or evidence at a trial that is in response
to new matter raised by the Defendant at an earlier stage
of the trial.
RELIEF – Whatever
a party to a Lawsuit asks the Court to do; dissolve the
marriage, award support, enforce a prior court order or
decree, divide property, enjoin certain behavior, dismiss
the Complaint of the other party.
REPLY – The
pleading filed in answer to the allegations of a Counterclaim.
RULES OF EVIDENCE – The
rules that govern the method of presentation and admissibility
of oral and documentary evidence at Court hearings or depositions.
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SETOFF – A
debt or financial obligation of one spouse which is deducted
from the debt or financial obligation of the other spouse.
SETTLEMENT – The
agreed resolution of disputed issues.
SETTLEMENT AGREEMENT – The
settlement reduced to a written document.
SHOW CAUSE – (Same
as Order to Show Cause) Written application to the Court
for some type of relief which is made upon such notice
to the other party as the Court directs and which may
contain a restraining order, temporary injunction, or
other ex parte relief, pending the determination of the
Motion.
STATUS QUO – The existing state of things; leaving things as they are without
modification or alteration. "Things" can be anything from visitation
arrangements to property rights.
STIPULATION – An
Agreement between the parties or their counsel.
SUBPOENA – A document
served upon a person who is not a party to the action, requiring him to appear
and give testimony at a deposition or Court hearing. A Subpoena is normally
accompanied by a witness fee set by Statute, as well as a mileage fee for transportation
costs to and from the place to which the individual is subpoenaed. Failure
to comply with the Subpoena could result in punishment by the Court.
SUMMONS – A written
notification to the Defendant that an action has been commenced against him,
and requiring that the Defendant appear within a specific period of time to
answer the Complaint.
SURREBUTTAL – Testimony
offered by the Defendant to counter any new matter contained in the rebuttal
testimony offered by the Plaintiff.
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TEMPORARY OR PENDENTE LITE MOTIONS – Applications
to the Court for interim relief pending the final decree
of divorce, separation, or annulment. Typical temporary
motions include motions for temporary maintenance, child
support, attorneys' fees, expert fees, custody, visitation,
enforcement or modification of prior temporary orders.
The Court enters a pendente lite order after determining
a motion. Motions are brought on by the service of a
notice of motion or order to show cause, with supporting
affidavits.
TESTIMONY – Statements
under oath by a witness in a Court hearing or deposition.
TRIAL – A formal
Court hearing to decide disputed issues raised by the pleadings.
VACATED – When a Court order, judgment
or decree is somehow defective, it is vacated--that is, eliminated -- and
either a substitute order is entered or a new hearing is granted, which will
ultimately result in a new order, judgment or decree.
VERIFICATION – A pleading made under oath
and signed before a notary public.
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