THE COURT SYSTEM - HOW IT WORKS - WHAT IT MEANS



THE COURT SYSTEM - HOW IT WORKS - WHAT IT MEANS

The legal system in the U.S. is based on the philosophy that the true
facts of a given situation--and hence justice--will emerge if the
parties to a court action act as adversaries rather than as cooperative
participants. The theory is that if each side vigorously advances its
own version of the facts, an impartial third person or group of persons
(judge or jury) will sift out the truth. Critics point out that this
system depends on equality of representation (assuming the parties are
proceeding through advocates). If one advocate is better than the other,
or has more money to prepare the case, the truth may not emerge.

The adversary system's use has been especially criticized in family law
cases on the ground that it intensifies divisions within a family rather
than ameliorates them. Because cooperation between former spouses is
necessary if children are involved, the adversary system seems
particularly inappropriate in these instances. In response, a number of
innovative procedures are being used to help spouses and domestic
partners resolve their disputes without recourse to the traditional
adversarial approach. For instance, many states require or encourage
parents with children who can't agree on custody and visitation to meet
with a court mediator. In this meeting, the mediator helps the parties
to explore their differences and craft their own solutions. And in many
communities, private mediation services are increasingly available for
both court referrals and spouses to use before either files for a
divorce. Finally, many family law attorneys are themselves becoming
mediators and helping divorce-bound parties to resolve their differences
without the necessity of each person having an attorney.

SOME TERMINOLOGY

CASE

A case describes a dispute taken to court. An appellate court decision
published in a book of such decisions is also called a case and may be
used as guidance or precedent by other courts. A person doing legal
research will commonly say that he has to look up a case to see if its
ruling on a point should be followed by other courts. The core legal
issue in a case is sometimes referred to as the gravaman of the case.

LEADING CASE

The most important published case in a particular area of law is called
the leading case. Such important cases are used as guidance by lawyers
and judges who face similar issues later. For example, in the area of
abortion, the leading case is Roe v. Wade.

LITIGATION

Litigation is the process of bringing and pursuing a lawsuit. Litigation
often proceeds much like trench warfare; initial court papers define the
parties' legal positions as trenches define battlefield positions. After
the initial activity, lawyers sit back for several months or years and
lob legal artillery at each other until they grow tired of the warfare
and begin settlement negotiations. If settlement is unsuccessful (90% of
all lawsuits are settled without trial), the case goes to trial, and may
be followed by a lengthy appeal.

Many states have enacted reforms directed at shortening the time a case
takes to get to trial and minimizing the expense traditionally
associated with litigation. Among these reforms are:

* "fast track" rules that prohibit delays and require each phase of the
case to be completed within a particular period of time * limits on how
much information can be obtained from the opposing party * requirements
that certain types of cases be arbitrated (a simpler procedure) rather
than pushed through the court system * requirements that attorneys
inform their clients of alternative dispute resolution procedures such
as mediation, and * court-sponsored techniques such as mini-trials and
early neutral evaluation that are designed to get the parties to settle
by giving them a realistic assessment of what is likely to happen if the
case goes to trial.

ACTION

Action is another word for lawsuit, case, legal matter or litigation.
Cause of action refers to a set of facts that make up the grounds for
filing a lawsuit.

ISSUE

Issue refers to the central point of dispute in a case.

HEARING

A hearing is a legal proceeding (other than a trial) held before a judge
or court commissioner. At a trial, disputed questions of fact and law
are resolved and the case is concluded (although the parties may
appeal). At a hearing, on the other hand, preliminary issues, procedural
issues (including granting an uncontested or default divorce) and post-
trial modifications and enforcements are heard.

Example 1: Paul has sued Taya for divorce. Their trial is to be held in
nine months. Taya needs alimony now, however, so she files a request for
temporary alimony. The court schedules a hearing at which Paul and Taya
can appear before a judge and orally present their separate sides. After
listening to Paul and Taya, the judge will decide if Taya is entitled to
the alimony, and if so, how much.

Example 2: Paul receives sporadic royalty payments for a book he wrote
seven years ago. He claims that the income is speculative and hopes to
keep it from being considered in the upcoming divorce trial where the
amount of permanent alimony will be determined. A week before the trial,
Paul requests a hearing to determine whether the law requires that the
judge consider his royalty income in setting Taya's alimony.

======= SIDE BAR--ADMINISTRATIVE HEARING

Administrative law is the body of law governing administrative agencies-
-that is, those agencies created by Congress or state legislatures, such
as the Social Security Administration, state Unemployment Insurance
Boards, state Welfare Commissions and the Occupational Safety and Health
Administration. The authority these agencies possess is delegated to
them by the bodies which created them; the Social Security
Administration's power comes from Congress.

Administrative agencies administer law through the creation and
enforcement of regulations; most of these regulations pertain to
providing some type of benefit to applicants. Frequently, an applicant
objects to an agency's decision to deny, limit or terminate the benefits
provided and seeks to have the decision reviewed. This review is called
an administrative hearing and is held before an administrative law judge
(A.L.J.).

Administrative hearings are informal, yet very important. Usually, the
A.L.J. meets with representatives from the agency and the applicant
seeking benefits. The applicant may choose to be or not be represented
by an attorney and in fact, many administrative agencies permit
paralegals, law students or law clerks to appear on behalf of
applicants. Each side presents its evidence and elicits testimony from
its witnesses. The hearing is often tape recorded, as opposed to taken
down by a court reporter. The A.L.J. renders a decision called an
administrative order, which may be reviewed by either a higher level
within the agency or by a court.
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TRIAL

A trial may be before a judge only or before a jury. Virtually all
family law trials are held without juries.

BENCH TRIAL

A bench trial is another term for a trial before a judge only. In
general, the parties begin with the presentation of evidence, although
in some cases they make opening statements. After the plaintiff finishes
presenting his evidence, the defendant presents her case. After the
defendant concludes her presentation, the plaintiff may rebut the
defendant's case. Rarely are closing arguments made. The judge may rule
immediately, but more often takes anywhere from a few hours to a few
weeks to consider the evidence and reach a decision.

SUBMISSION

When a judge does not immediately announce a decision, the judge is said
to take the case under submission.

JURY TRIAL

In a jury trial, the jury is selected by the parties through a process
called voir dire, where the judge or parties ask jurors questions in
order to determine their biases and opinions. (Each side gets to reject
a certain number of potential jurors.) After the jury is chosen and
sworn in, the parties give opening arguments, present their evidence and
give closing arguments. The jury then deliberates; when it reaches a
decision, it returns to the courtroom and announces the verdict.

The roll of the jury is to decide issues of fact. Parties are entitled
to a jury trial by the federal constitution in those types of cases,
such as breach of contract, which existed in 1789, the effective date of
the constitution. Kinds of cases that have come into existence since
then, however, such as divorce (which in 1789 still fell under the
religious courts) and actions in juvenile courts, are not guaranteed
jury trials. States are free to make jury trials available for such
actions, but few have. In fact, only Texas and Georgia permit jury
trials for divorces.

WHERE THE LAW COMES FROM

There are two major ways in which legal principles are developed in the
United States. One is through appellate court decisions in individual
cases, called case law. The other is through the passage of laws by
voters and legislative bodies, called statutes.

CASE LAW

Legal principles that are developed by appellate courts when deciding
appeals are collectively termed the case law or common law. Since the
12th century, the common law has been England's primary system of law.
When the United States became independent, states adopted the English
common law as their law. Since that time, decisions by U.S. courts have
developed a body of U.S. case law which has superseded English common
law in most areas.

======= SIDE BAR--PRECEDENT

Precedent is a legal principle, created by a court decision, which
provides an example or authority for judges deciding similar issues
later. Generally, decisions of higher courts (within a particular system
of courts) are mandatory precedent on lower courts within that system--
that is, the principle announced by a higher court must be followed in
later cases. For example, the California Supreme Court decision that
unmarried people who live together may enter into cohabitation
agreements (Marvin v. Marvin), is binding on all appellate courts and
trial courts in California (which are lower courts in relation to the
California Supreme Court). Similarly, decisions of the U.S. Supreme
Court (the highest court in the country) are generally binding on all
other courts in the U.S.

Decisions of lower courts are not binding on higher courts, although
from time to time a higher court will adopt the reasoning and conclusion
of a lower court. Decisions by courts of the same level (usually
appellate courts) are considered persuasive authority. That is, they
should always be carefully considered by the later court but need not be
followed.

As a practical matter, courts can usually find precedent for any
direction they want to go in deciding a particular case. Accordingly,
precedent is used as often to justify a particular outcome in a case as
it is to guide the decision.
=======

STATUTE

Under the U.S. and state constitutions, statutes are considered the
primary source of law in the U.S.--that is, legislatures make the law
(statutes) and courts interpret the law (cases).

Most state statutes are organized by subject matter and published in
books referred to as codes. Typically, a state has a family or civil
code (where the divorce laws are usually contained), a criminal code
(where incest, bigamy and domestic violence laws are often found),
welfare code (which contains laws related to public benefits), probate
code (where laws about wills, trusts and probate proceedings are
collected) and many other codes dealing with a wide variety of topics.
Federal statutes are organized into subject matter titles within the
United States Code (for example, Title 18 for crimes and Title 11 for
bankruptcy).

======= SIDE BAR--LEGISLATIVE INTENT

Legislative intent is what a legislature as a whole had in mind when it
passed a particular statute. Normally, any given statute is interpreted
by looking just at the statute's language. But when the language is
ambiguous or unclear, courts try to glean the legislative intent behind
words by looking at legislative interpretations (for instance, reports
issued by legislative committees) which were relied upon by legislators
when voting on the statute.

Statutes are often ambiguous enough to support more than one
interpretation, and the material reflecting legislative intent is
frequently sparse. This leaves courts free to interpret statutes
according to their own predilections. Once a court interprets the
legislative intent, however, other courts will usually not go through
the exercise again, but rather will enforce the statute as interpreted
by the other court.
=======

UNIFORM STATUTES

Uniform laws, such as the Uniform Child Custody Jurisdiction Act, the
Uniform Pre-Marital Agreement Act, and others, are model laws proposed
by a national group of judges, lawyers and law professors called the
Uniform Law Commissioners. The commissioners propose the laws; states
are free to enact or reject them.

Topics covered by uniform laws are often ones in which there is much
interstate activity, such as marriage, divorce, paternity, custody and
child support and in which consistency, predictability and uniformity
are desirable. Some uniform laws have been passed by all states (for
example, the Uniform Child Custody Jurisdiction Act) whereas others have
only been enacted by a few (for instance, the Uniform Divorce
Recognition Act). Clearly, the central goal of uniformity is well served
only if a significant number of states enact a given uniform law.

ORDINANCE

An ordinance is a law enacted by a municipal body, such as a city
council or county commission (sometimes called county council or county
board of supervisors). Ordinances govern matters not already covered by
state or federal laws such as zoning, safety and building regulations.

======= SIDE BAR--LAWS OF SUBSTANCE AND PROCEDURE

Laws which define legal duties and rights are called the substance of
the law, or substantive law. Substantive laws include the standards for
custody, the grounds for divorce and the right to have an abortion.

On the other hand, the body of laws which tells how to go to court and
get judicial relief is generally called the law of civil procedure.
Civil procedure is predominantly made up of statutes and rules issued by
individual courts.
=======

PARTIES

A person who sues or defends a lawsuit or any person joined in a
lawsuit, such as a pension plan administrator is called a party. A party
has the right to conduct discovery and receive notice of all proceedings
connected with the lawsuit.

PRO PER OR PRO SE

A party to a lawsuit who represents herself, rather than being
represented by a lawyer is called a party in pro per (or pro se). Both
terms mean "for yourself." Pro per and pro se litigants often find it
difficult to do their own legal work because the legal system is hostile
to self-helpers. Arizona and Colorado, however, have implemented an
automated court system that provides people with legal information and
helps them complete court documents themselves. Also, self-help law
books and paralegals who directly serve the public are increasingly
available to help pro per and pro se litigants in many states.

PLAINTIFF

The person who initiates a lawsuit by filing a complaint is called the
plaintiff. When the document that initiates a lawsuit is called a
petition rather than a complaint, the initiating person is usually
referred to as the petitioner rather than the plaintiff.

DEFENDANT

The person against whom a lawsuit is filed is usually called the
defendant. In some states, or in certain types of actions, the defendant
is called the respondent. The term respondent is also used to designate
the person responding to an appeal.

======= SIDE BAR--SPECIAL CONCERNS OF PLAINTIFFS AND DEFENDANTS

In Forma Pauperis. In Forma Pauperis is a Latin term meaning "in the
character of a pauper." It refers to a petition filed by a poor person
in order to proceed in court without having to pay court costs such as
filing fees.

In forma pauperis proceedings are available in every state. A person
with a low income (usually eligible for or receiving public assistance)
fills out in forma pauperis papers (indicating income and expenses)
before filing his first court paper (complaint or answer). The papers
request that the court decide whether or not the costs be paid. Although
a hearing before a judge is sometimes needed, the more usual practice is
for the court to grant or deny the request without a hearing.

Military personnel. A person on active military duty is a person who has
enlisted in the armed services and is serving out the term of his
enlistment, or is an officer in the armed services who has not
transferred to the reserves, resigned, retired or been dismissed. A
person on active military duty is prohibited by a federal law (Soldiers
and Sailors Civil Relief Act, 50 U.S.C. Section 501 et seq.) from being
subjected to any civil court action, including a divorce, unless he
consents to the power of the court to hear the case. A plaintiff who
wants to sue someone on active military duty who won't consent must wait
until he leaves active duty. The reasons for this rule are:

* it would not be fair to proceed in court against a serviceperson who
is prevented from attending because of his military duty, and * it would
be too disruptive and expensive for the military to have its members
coming and going long distances just because they have been sued.
=======

CO-RESPONDENT

The "other man" or "other woman" named in the court papers for a fault
divorce alleging adultery is called the co-respondent.

APPELLANT

The person who objects to the trial court decision and asks the
appellate court to review the decision by filing an appeal is called an
appellant (also called a petitioner in some states).

APPELLEE

The party against whom an appeal is filed is called the appellee or the
respondent. Sometimes the appellee will also appeal certain aspects of
the lower court's decision; he then becomes a cross-appellant as well as
an appellee. In this situation, the appellant (the one who filed the
appeal) becomes a cross-appellee or cross-respondent.

TYPES OF COURTS

TRIAL COURT

The trial court is the court in which a lawsuit is filed, and where all
litigation up to and including the trial is held.

APPELLATE COURT

An appellate court is one which decides appeals of trial court decisions
or lower appellate court decisions. A state's highest court--usually
called the supreme court--is an appellate court. So is the U.S. Supreme
Court.

FAMILY COURT

Family courts are special trial courts that hear only family law cases.

FILINGS/PAPERS

All papers filed with a court regarding a lawsuit are called court
papers. Court papers typically consist of pleadings (complaint or
petition and answer), motions (written requests to the court to take
some specific action) and court orders (written orders resulting from a
trial or hearing).

The term responsive pleading is used to describe any court paper filed
by a defendant in direct response to the complaint or petition filed by
the plaintiff. An answer is the typical responsive pleading. Others
include various motions, such as a motion to quash service of process or
a motion to dismiss the complaint, which is intended to get the
complaint or petition dismissed at the outset of the case.

A number of states have developed pre-printed court forms for use in
court proceedings involving such matters as divorces, guardianships and
temporary restraining orders. These forms are especially helpful to
people handling their own cases without lawyers; checking boxes and
filling in blanks is usually much easier than figuring out what needs to
go into a document that must be typed from scratch. On the other hand,
some forms are so confusing that they intimidate all but the most
knowledgeable lawyers or paralegals.

SUMMONS

A paper issued by a court informing a person that a complaint has been
filed against her (that is, that she has been sued) is called a summons.
The summons tells her that she is being sued, by whom, for what, and
that she must file a response with the court within a certain time or
will lose.

COMPLAINT

The complaint is the first court paper filed in a lawsuit. It briefly
states the plaintiff's view of the crux of the legal dispute and asks
the court to resolve the dispute. In some types of cases and in certain
states, a complaint is called a petition or a libel. Items that
typically appear in a complaint include:

Caption. The caption is the heading which appears on all court papers.
The caption contains the names of the parties to the lawsuit (for
example, Susan Roe, Plaintiff, v. Robert Roe, Defendant), the name of
the court (for example, Federal District Court for the Eastern District
of Pennsylvania), the case number which has been assigned by the court
clerk, and the title of the court paper (for example, Complaint for
Annulment).

Allegations. An allegation is a statement made in court papers that sets
forth a party's belief as to what the facts are in a given case.
Referring to statements made in court papers as allegations serves as a
reminder that they may or may not be true. Thus, when a party has
alleged something, she has made charges which remain to be proven.

Prayer. The prayer is the part of a complaint which requests the court
to grant some specific judicial relief (for example, a divorce,
possession of the family home, child support or custody).

ANSWER

An answer is a formal response to allegations made in a complaint (or
petition). Normally, the answer either admits or denies the allegations,
although some states allow an answer to state a lack of knowledge as to
whether a particular allegation is true or false. If the defendant fails
to file an answer, the plaintiff usually wins by default. In a divorce,
failure to file an answer may result in a default divorce.

Example: Martin is sued for paternity by his former lover, Rhoda. Martin
will be served with a complaint (or petition) containing the allegation
that Rhoda believes he is the father of her child. He must answer within
a certain period of time (usually about 30 days) or lose by default. In
his answer, he must either admit or deny each of the complaint's
allegations. In some states, Martin may respond that he doesn't know
whether or not an allegation is true.

BRIEF

When a party (either through her lawyer or in pro per) submits a written
legal argument to a court--usually to support a motion or a position
asserted at a trial--the document is often called a brief. It typically
consists of a statement of the facts relevant to the case and arguments
supported by references to legal authority (statutes, regulations or
earlier court decisions). Many briefs are quite lengthy; the label
"brief" is an infamous misnomer celebrated by the writer Franz Kafka who
described a lawyer as "a person who writes a 10,000 word document and
calls it a brief."

Points and authorities. A brief usually contains a memorandum of points
and authorities. Points and authorities explain why the law authorizes
the judge to take the requested action. The term points and authorities
comes from the fact that the legal discussion makes certain points
followed by citations to legal authority (usually a court decision or
statute) supporting each point.

Citations. The proper reference (as established by the legal profession)
to a case, constitution, statute, legal encyclopedia or legal treatise
is called a citation. A citation contains the name of the case or other
authority, the name of the book in which it is found, the volume in
which it appears, its page or section number and the year decided or
enacted. Citations allow any reader to find the source and read it.

Example: The proper citation for the case allowing women to have an
abortion is Roe v. Wade, 410 U.S. 133 (1973). The name of the case
includes the name of the plaintiff (Roe) followed by a v. (meaning
versus) followed by the defendant's name (Wade). 410 is the volume
number where the case is found in the series called United States
Reports (abbreviated by U.S.) at page 133. The case was decided in 1973.

AMICUS CURIAE BRIEF

Amicus curiae is a Latin term meaning "friend of the court." It is a
legal argument filed in a lawsuit by a person or organization not a
party to the case, but who has an interest in the outcome. For example,
in the Supreme Court abortion case, Webster v. Reproductive Services,
amicus curiae briefs were filed by hundreds of pro-choice and anti-
abortion organizations. The court may give the arguments in the amicus
curiae brief as much or as little weight as it chooses.

AFFIDAVIT

An affidavit is a written statement made by a person who signs the
statement in front of a notary public and swears to its truth.
Affidavits are used in place of live testimony in many circumstances
(for example, when a motion is filed, a supporting affidavit may be
filed with it).

DECLARATION

A declaration is a written statement submitted to a court in which the
writer swears "under penalty of perjury" that the contents are true.
That is, the writer acknowledges that if he is lying, he may be
prosecuted for perjury. Declarations are normally used in place of live
testimony when the court is asked to order temporary provisions for
alimony, child support, custody, visitation and property division.

A typical declaration sets forth the factual assertions of the person
signing it (called the declarant) and ends with a statement worded like
this one: "I declare under penalty of perjury that the foregoing is true
and correct, and would be my testimony if I were in a court of law." The
date and place of signing are usually included.

Some states allow declarations to be used in the place of affidavits,
thus avoiding a trip to the notary public.

ASSERTION

An assertion is a statement that a thing is true in the mind of the
person making the statement, whether or not it has been proven to be
true.

FINANCIAL STATEMENT

A financial statement (sometimes called an income and expense
declaration) is a court paper which requires a party to specify her
monthly income and expenses. The court often requires each divorcing
spouse to fill out a financial statement so that the court has a
complete picture of the parties' financial situations before making a
decision on alimony, child support, payment of attorneys' fees or other
financial matters.

HABEAS CORPUS PETITION

Habeas corpus is Latin for "you should have the body." In legal terms,
it is a petition filed with a court by a person who objects to his own
or another's detention or imprisonment. The petition must show that the
court ordering the detention or imprisonment made a legal or factual
error. Habeas corpus petitions are usually filed by persons serving
prison sentences. In family law, a parent who has been denied custody of
his child by a trial court may file a habeas corpus petition. Also, a
party may file a habeas corpus petition if a judge declares her in
contempt of court and jails or threatens to jail her.

======= SIDE BAR--TERMS SOMETIMES FOUND IN COURT PAPERS

Above captioned cause. The above captioned cause is a phrase used in
court papers meaning the particular case. It allows the writer to refer
to the case without restating its name. It is not necessary, however, to
use this phrase.

Example: Assume Fred Johnson is representing himself in his divorce and
files a request for a modification of child support. In court papers, he
may refer to his own case of Johnson v. Johnson as "the above captioned
cause."

Incorporate by reference. The method of including the contents of a
document--such as a letter--in court papers or a contract without
actually retyping it is called incorporating by reference. This is done
by attaching the document to the back of the court papers or contract
and referring to it with convoluted language such as, "the letter is
attached to this document as Exhibit A and incorporated by reference as
if fully set out within this document."
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COURT PERSONEL

CLERK

Within our judicial system, there are many types of clerks. Court clerks
(frequently called county clerks) keep track of documents filed with
courts; these clerks may also be called civil or criminal clerks,
depending on the court in which they work. Courtroom clerks are assigned
to particular judges to handle the paper flow in the courtroom; law
clerks (usually law students or lawyers) assist judges (and sometimes
attorneys) in legal research and writing. Calendar clerks handle the
scheduling of trials and hearings.

BAILIFF

A bailiff is a law enforcement officer, usually a sheriff, marshal or
constable, assigned to a courtroom to keep peace and assist the judge,
courtroom clerks, witnesses and jury.

JUDGE PRO TEM

A judge pro tem is not a regular judge, but someone (usually a lawyer)
who is brought in to serve temporarily as a judge with the consent of
the parties. Many courts use pro tem judges because there are too many
cases for the regular judges to handle. Although every party has the
right to have his case heard by a real judge, judges pro tem are often
practitioners in the field in which they are asked to hear cases and
have as much, if not more, knowledge than a real judge. Pro tem judges
are used often in family law cases, especially in default divorces.

MASTER

A master (sometimes called a special master) is a court-appointed
official who helps the court carry out a variety of special tasks in a
specified case. For example, the master may take testimony or permit
discovery of evidence. She then prepares a report for the judge. In many
family law proceedings, some routine matters, such as uncontested
divorces, are conducted by a master.

COURT COMMISSIONER

A court commissioner is a person appointed by a judge to assist her in
finding facts, hearing testimony from witnesses and resolving issues.
Court commissioners are frequently lawyers or retired judges. In many
states, court commissioners commonly hear testimony concerning the
validity of wills, preside over default divorces and other default
hearings, decide alimony and child support modifications, and decide
discovery motions.

COURT REPORTER

A court reporter is a person trained to take down a verbatim account of
all proceedings in the courtroom (but usually not in the judge's
chambers unless a party requests it). Most court reporters today use
special machines that enable them to get down every word. Later, they
prepare typed transcripts for use by the parties and the judge on
appeal. Court reporters also record and transcribe depositions.

Until recently, court reporters had to manually type out the transcript
from their shorthand notes. Now, however, many reporters have machines
that read the recording machine tape and create a text file that can be
printed out on a standard computer printer.

NOTARY PUBLIC

A notary public is a public official who, depending on the state, has
the power to acknowledge signatures, administer oaths and affirmations,
take depositions and issue subpoenas in lawsuits. Notaries public are
most commonly used to acknowledge signatures, especially on court papers
such as affidavits.

Although notaries public are public officials, most are people who work
in private industry and take a state-administered test to become
notaries public. Often, one or more employees of large institutions
which process much paperwork (such as banks, insurance companies and
real estate brokers) and large law offices are notaries public. Also,
many people who work at courthouses are notaries public.

TERMINOLOGY

CASE NUMBER

The number given by the court clerk to a lawsuit when it is filed is
called the case number. Each case in a county has a unique number so
that it may be distinguished from all other cases in that county.

CASE RECORD

All papers filed with the court during a lawsuit and the transcripts of
all hearings and trials (made by a court reporter) become part of the
official case record. If a party appeals from a trial court judgment,
the appellate court normally considers only information contained in the
case record. It is therefore important for a party during the trial to
get all of her evidence and objections into the case record in the event
she later decides to appeal.

DOCKET SHEET

A docket sheet is a document kept in a case file at the courthouse. It
lists all papers filed and actions taken in a case. The judge may also
note on it any action taken during a hearing or trial. Except for
juvenile court and certain other types of confidential matters (such as
adoptions), case files and docket sheets are public records and can be
inspected by anyone.

CALENDAR

When used as a verb, the word "calendar" is slang for scheduling a
trial. (For example, "The Murphy divorce case is calendared for
September 3rd.") When used as a noun, it refers to a master list kept by
a court, called the civil calendar, which shows cases that are ready for
or in trial. Some states do not allow cases to be placed on a court
calendar until all preliminary procedures, such as discovery and
motions, have been completed. Unless the plaintiff or defendant (or one
of their lawyers) requests that a case be placed on this calendar, it
will never be scheduled for trial. In fact, many cases are dismissed
every year because attorneys fail to take this vitally important step.

Example: Estelle and Ira Green are ordered to return to court in six
months for the judge to decide whether Estelle will need alimony any
longer. In the courthouse case file for the Marriage of Green (the title
of the case), Judge Garcia will place a sheet of paper (often a form) on
which she has written "Husband to pay wife $250 per month for six
months. Parties to return to court in six months for further order."

COURT RULE

Every court has rules (often called local rules) governing the
procedures specific to that court. Details such as the size and length
of the court papers, time limits for filing certain documents, the cost
of filing and when a case may be placed on a calendar are dictated by
these rules. In most states, statewide court rules govern the amount of
alimony and child support to be paid based on the incomes of the spouses
and the number of children. Court rules are usually formulated by
legislative and administrative judicial bodies, or by the courts
themselves.

BIAS

Any mental condition that would prevent a judge or juror from being fair
and impartial is called bias. It may be ground for disqualification of
the judge or juror in question.

PEREMPTORY CHALLENGE

Most states allow the parties to a case to dismiss the judge assigned to
the case without having to prove actual bias. Called a peremptory
challenge, this right may usually only be exercised once by a party in
any given case.

BENCH

The furniture on which the judge sits is called the bench. When
something is done from the bench, it means it was done by a trial judge.

CHAMBERS

A judge's office is referred to as her chambers. Settlement conferences
and adoptions are usually held in her chambers. During a trial, when the
judge wants to examine documents, speak with witnesses or speak with the
attorneys outside the jury's presence, the judge presides in camera, the
Latin term for "in chambers," and holds a conference either in the
chambers or at the bench (where the attorneys and judge whisper so the
jury can't hear).

RECUSAL

Recusal is the process by which a judge voluntarily removes himself from
hearing a particular case because of bias, conflict of interest,
relation to a party, attorney or witness, or for any other reason.

CONTINUANCE

When a court postpones a hearing, trial or other scheduled appointment
(such as a settlement conference), it is called a continuance. If one
party is not prepared for a hearing or trial, the court may grant a
continuance to allow the party to get a lawyer or otherwise prepare so
as not to be at a disadvantage. While continuances are often called for
on the ground of fairness, they also are commonly sought by attorneys
solely for the purpose of delaying the proceeding or harassing the other
side.

SERVICE OF CASE DOCUMENTS

A party to a lawsuit has the right to receive written notice that he is
being sued or that a hearing will be held which might affect him in some
way. Many rules have been developed to govern what notice needs to be
given, and how and when it must be delivered. These are usually
contained in court rules and rules of civil procedure.

Service of court papers (also referred to as service of process or
service) is the delivery of court papers to a party, witness or other
person who has a stake in the case. Every state has detailed laws
spelling out just how the papers may be delivered, and by whom. When a
person has been provided with formal notice of the filing of a lawsuit
(that is, that he has been sued), of a court hearing or trial, or
ordering him to attend a hearing, trial or deposition, he is said to
have been served.

In most cases, including divorces, the first papers that must be served
are the summons and complaint. These documents give the defendant notice
that the lawsuit has been filed and what the plaintiff is seeking (for
example, a divorce). The court cannot proceed unless the plaintiff
properly serves the defendant with these papers. There are five major
types of service:

* Personal service--When the person served is physically handed court
papers notifying her that she has been sued, she is said to have been
personally served. With almost all lawsuits, the complaint and summons
must be personally served unless the defendant agrees to accept service.
(See below.) If the defendant does not agree to accept service and is
not personally served, the court cannot take any action in the case,
unless the plaintiff can show that personal service was impossible.

======= SIDE BAR--ACCEPTING SERVICE OF COURT PAPERS

The least expensive and most convenient way to satisfy the service
requirement is for someone on behalf of the plaintiff to mail the
summons and complaint to the defendant and ask her to sign, date and
return a form acknowledging that she received them. This voluntary
acceptance of court papers is called accepting service or acknowledgment
of service, and saves the plaintiff from having to pay someone to locate
and hand deliver the papers, which is otherwise required if the
defendant doesn't cooperate. In some states, the failure to accept
service voluntarily makes the defendant responsible for the cost of
service even if he otherwise wins the case.
=======

* Service by mail--Once a party has been properly served with the
complaint and summons, most future court papers in the lawsuit may be
served on the parties by first-class mail. Most states require that
someone other than a party to the action do the actual mailing and file
proof of the service with the court.

* Service by publication--When the whereabouts of a defendant are
unknown, or personal service within the state is impossible, a court may
allow the defendant to be served with notice of the lawsuit by
publishing the notice in a newspaper of general circulation. As a
general matter, this type of service is only allowed in cases involving
property and status (personal relationships affected by the law). Thus
divorces and certain adoptions (status) and partition suits (property)
may be allowed to proceed after service by publication. But issues such
as child custody and support cannot be decided until and unless personal
service occurs.

======= SIDE BAR--BIFURCATION

In situations where the plaintiff is unable to personally serve the
defendant, the parties don't necessarily have to stay married. The court
can bifurcate the case--that is, divide it--in two. The divorce itself
is determined. Only when the defendant is personally served can the
court then decide the related issues of custody and visitation, child
support, alimony, and property division.
=======

* Nail and mail--Nail and mail service is the posting of the notice on
the person's home and then mailing him a copy (hence nailing and
mailing).

* Substituted or alternate service--In some states, such as New York,
substituted or alternate service is any method of service a court allows
when personal service is impossible or impracticable. In other states,
such as California, substituted service is leaving the court papers with
a responsible person at the defendant's home or business and then
mailing the defendant a copy.

In most divorce cases, if a divorce is all that is being sought, service
often can be made by mail or publication. If, however, alimony, child
support, custody, visitation or a division of property is being sought
in addition to the divorce itself, most states require personal service
on the defendant. In either case, if the defendant's whereabouts are
unknown, service by publication is often the only available method.

Once the defendant has been served with the summons and complaint,
service of most subsequent court papers may be done by mailing them,
without the need for an acknowledgment of service form. Some papers,
however, such as contempt of court hearing notices and temporary
restraining orders must still be formally served. The party being
served, however, may voluntarily accept these papers.

After the defendant has been served, she usually files an answer or
other response. She must serve this on the plaintiff, and usually can
serve it by mail because the plaintiff, by initiating the lawsuit, has
already appeared in the case and consented to the court's power to hear
the case.

Service of court papers on a witness (for example, service of a notice
telling the witness that his deposition has been scheduled), must
usually be done personally; service by mail or publication is almost
never sufficient.

PROCESS AND PROCESS SERVER

Any court document carrying the court seal or clerk's signature, that
must be properly served on (that is, given to) the party or witness
named in the document, is called a process document or process. A
subpoena--a document requiring the appearance of a person or the
production of documents at a hearing--and a summons are examples of
court process. Rules as to who can serve process and how it must be done
vary. Some states allow only sheriffs, marshals and constables to serve
process. Other states also authorize registered process servers (often
private investigators), and a few states allow service by anyone 18 or
over who is not a party to the case.

PROOF OF SERVICE

A proof of service is a court paper filed by a process server as
evidence that she served the witness or party to the lawsuit with the
court papers she was instructed to serve.

JURISDICTION

When a court has the authority to decide a case, it is said to have
jurisdiction over it. In all states, certain types of courts (often
called, depending on the state, superior, circuit, county, district or
family courts) are given specific and exclusive jurisdiction to handle
family law cases. A family law court cannot, however, hear bankruptcies
or criminal cases.

SUBJECT-MATTER JURISDICTION

The authority to decide a particular type of case is called subject-
matter jurisdiction. The subject-matter jurisdiction of a court is set
by the federal or state constitution, or by state statutes.

In order for a court to have subject-matter jurisdiction over a divorce
action, at least one spouse must have lived in the county where the
court is located for a certain period of time. Some states also require
the spouse to have lived within the state for a certain length of time,
usually a few months longer than the time in the county. For example, to
obtain a divorce in California, a person must have lived in California
for at least six months, and in the particular county in which he wants
to obtain the divorce for at least three months. In Illinois, a person
must have lived in the state for ninety days, in New York and New
Jersey, the requirement is one year. In Texas, a person must have lived
in the state for six months and in the particular county in which she
wants to obtain the divorce for at least ninety days.

PERSONAL JURISDICTION

If the court is being asked to determine alimony, child support,
custody, visitation or the division of property, the court must have the
power to make orders concerning the individual defendant. This is called
personal jurisdiction. Personal jurisdiction is also called "in personam
jurisdiction."

For a court to have personal jurisdiction over the defendant, the
defendant must have been personally served (or have accepted service of
the court papers) and the defendant must have at least some contacts
with the state in which the court is located. No set number qualifies as
the minimum; each situation must be analyzed case by case. If the
defendant lives out of state, the court must look at the defendant's
contacts with the state. Going into a state regularly to conduct
business is usually sufficient for the court to obtain jurisdiction;
sending child support payments to a state, without actually visiting the
state, however, is not.

Example: Denise and Walter spent their entire married life in Colorado.
Denise moved to New Mexico, established residency and sued for divorce.
If Walter has virtually no contacts with New Mexico, the New Mexico
court has no personal jurisdiction over him. As a practical matter, this
means the court may award Denise a divorce, but cannot make any
decisions affecting the division of property, an award of alimony or
child support, or a determination of custody and visitation because
these matters affect Walter's rights as an individual. If, however,
Walter and Denise spent five weeks every summer during their marriage in
New Mexico, the court may rule that Walter's contacts with New Mexico
are sufficient for there to be personal jurisdiction in New Mexico.

IN REM JURISDICTION

Rem is Latin for "thing." When a court exercises in rem jurisdiction, it
exercises authority over a thing, rather than a person. For example, if
a divorcing couple asks a court to supervise the sale of their family
home, the court exercises in rem jurisdiction over the house. Usually,
the property must be located in the same county as the court for it to
have in rem jurisdiction.

A court which grants a divorce exercises in rem jurisdiction over the
marriage. One spouse must live in the same county as the court
(therefore the marriage is in the county) for the court to exercise in
rem jurisdiction over the marriage.

VENUE

Venue is the legally proper place where a particular case should be
filed or handled. Every state has rules determining the proper venue for
different types of lawsuits. For example, the venue for a paternity suit
might be the county where the mother or the man alleged to be the father
lives; the suit couldn't be brought in an unrelated county at the other
end of the state. The state, county or district in which a lawsuit is
filed or a hearing or trial in that action is conducted is called the
forum.

======= SIDE BAR--FORUM NON CONVENIENS

Forum non conveniens means "inconvenient forum." Although there are
rules which govern where a lawsuit must be filed, sometimes the location
is inconvenient for the witnesses or parties. If a party makes an
adequate showing of inconvenience, the principle of forum non conveniens
allows a judge to decline to hear a case even though the court is an
appropriate court for the case.

Example: Vince and Claire's divorce case was decided in Miami, Florida,
but both have since moved to Orlando. Any request for modification must
first be filed in Miami, but either party could request that the court
decline to hear the case, and instead, transfer it to Orlando for the
hearing.
=======

MOTIONS

A motion is a written request to the court. When a party asks the court
to take some kind of action in the course of litigation, other than
resolving the entire case in a trial, the request is made in the form of
a motion. Motions are often made before trials to resolve procedural and
preliminary issues, and may be made after trials to enforce or modify
judgments. Motions may also be made to resolve legal issues in the case
if there is no disagreement about the facts. Usually called a motion for
summary judgment or a motion for summary adjudication of the issues,
these motions can resolve all or most of the issues in a case without
the need for a trial.

Normally, one side submits a motion, the other side submits a written
response, and the court holds a hearing at which the parties give brief
oral arguments. (Some motions are considered only on the basis of the
writings.) Then the court approves or denies the motion.

======= SIDE BAR--HEARINGS TO RESOLVE MOTIONS

When a party objects, either in person or in writing, to the other
party's motion, the court must hold a hearing on the matter. If the
party against whom the motion was filed fails to show up for the
hearing, the proceedings usually go forward without her. In these
circumstances, usually the party who filed the motion will normally get
what he requested.

If a person is served with a subpoena ordering him to appear at a
hearing but fails to show up, he may be guilty of contempt of court and
subject to arrest, fine or imprisonment. Therefore, a person who has
been subpoenaed but who is unable to attend a hearing when it is
scheduled should call or write the court clerk in advance and request a
continuance.

An in camera hearing is a hearing held in the judge's chambers and is
not open to the public. In camera hearings usually take place to protect
the privacy of the people involved and are common in cases of
guardianships, adoptions and custody disputes alleging child abuse.
=======

A family law case might involve any or all of these motions:

Motion for preliminary orders. When a couple separates or files for
divorce, a party often needs the immediate intervention of a court to
establish alimony, child support, custody and use of property (for
example, the car). Couples who are unable to work out arrangements
themselves often request a preliminary hearing (also called a temporary
hearing) before the judge.

Order to show cause. An order to show cause is an order issued by a
judge, requiring a person to appear in court at a hearing and tell the
judge (that is, show cause) why the court shouldn't take a certain
action.

Many states allow a spouse or other person victimized by domestic
violence to obtain a court order requiring the abuser to appear in court
and show cause why the court should not issue a temporary restraining
order prohibiting him from further harming the victims. The court can
also issue an order requiring an abusive spouse to move out of the
family home.

In family law, orders to show cause are also used when a party violates
a court order, such as an order to pay alimony or child support. In this
situation, the other party will ask the court to hold an order to show
cause hearing to determine whether the party who has violated the court
order should be held in contempt of court.

======= SIDE BAR--FAILING TO SHOW UP AT AN ORDER TO SHOW CAUSE HEARING

If a person fails to appear in court when she has been properly ordered
to do so, the judge is authorized to issue a warrant (a court order
authorizing a law enforcement officer to arrest someone) for her arrest.
A warrant issued this way is called a bench warrant.

Example: Joe has fallen behind on his court-ordered child support. Joe's
former wife, Jill, has served Joe with an order to show cause why he
should not be held in contempt of court for not complying. Joe failed to
appear at the scheduled hearing; the judge issued a bench warrant
authorizing the police to arrest Joe and bring him before the judge to
answer the charge of contempt.
=======

Motion for a protective order. A protective order is any order issued by
a court which is meant to protect a person from harm or harassment. A
protective order is commonly used to protect a party or witness from
unreasonable or invasive discovery requests (for example, harassing
questions in a deposition, or an unnecessary medical examination). Less
often, a temporary restraining order issued to prohibit domestic
violence is referred to as a protective order.

Motion to quash service of process. When a person who has been served
with court papers believes that the service was not made according to
law, he can file a motion to invalidate or quash the service. If the
motion is successful, service must be tried again. The reasons a court
might quash service of process include improper service techniques (such
as leaving the papers on a doorstep) or service outside the geographical
jurisdiction of the court.

Motion to bifurcate. Bifurcation is the act of dividing a trial into two
parts. In family law, bifurcation occurs when the divorce itself is
determined separately from the related issues of custody and visitation,
child support, alimony, and property division.

Motion to join a party. Joinder is the process of bringing someone into
an existing lawsuit as an additional party because his rights or
obligations are involved in the case. For example, when a court divides
a pension as marital property during a divorce, the pension plan
administrator often must be joined as a party to the divorce, so that if
the court awards a spouse payments under the other spouse's pension, the
plan administrator can make the proper arrangements. This is necessary
because most pension plans prohibit the administrators from paying
anyone other than the employee or other person named as beneficiary--
that is, someone entitled to benefits--of the pension.

Motion to compel discovery. When parties disagree over whether certain
information is obtainable through the discovery process, they can
request that the court resolve their dispute. They submit their requests
in the form of written motions. Normally, a discovery motion asks either
for an order compelling the other side to respond to discovery requests
or for a protective order limiting the discovery efforts of the other
side.

Motion for sanctions. When a court concludes that a party to a lawsuit
or an attorney has misused the legal process in some way, a penalty
called a sanction may be imposed. Common sanctions are fines (to be paid
to the other side or to the court), limitations on a party's ability to
make certain arguments or to conduct discovery, and in extreme cases, a
finding of contempt of court.

Example: Nate has sued Lois for a breach of their cohabitation
agreement. Lois scheduled Nate's deposition, but Nate did not appear,
nor did he call to say he needed to reschedule or couldn't attend. As a
result, Lois was out the money she paid the court reporter and her
attorney. To recover it, she filed a motion asking the court to compel
Nate to appear for his deposition and also asking the court to impose
sanctions against Nate in the amount of money his non-cooperation cost
her.

ORDER

An order is the decision rendered by a judge after a hearing.

DISCOVERY

The formal procedures used by parties to a lawsuit to obtain information
before a trial is called discovery. Discovery helps a party find out the
other side's version of the facts, what witnesses know, and other
evidence. Rules dictating the allowable methods of discovery have been
set up by Congress (for federal courts) and by state legislatures (for
state courts). Common discovery devices include:

* Deposition--a proceeding in which a witness or party is asked to
answer questions orally under oath before a court reporter.

* Interrogatories--written questions sent by one party to the other
party for the latter to answer in writing under oath.

* Request for admission--a request to a party that he admit certain
facts. One party sends the other a request for admission so that basic
issues the parties agree upon can be resolved and not have to be proven
if the parties go to trial.

* Request for physical examination--a request to a party that he be
examined by a doctor if his health is at issue.

* Request for production of documents--a request to a party to hand over
certain defined documents. In family law cases, parties often request
from each other bank statements, pay stubs and other documents showing
earnings, assets and debts.

*  Request for inspection--a request by a party to look at tangible
items (other than writings) in the possession or control of the other
party. Items to be inspected include houses, cars, appliances and
virtually any other physical item.

* Subpoena--an order telling a witness to appear in court or at a
deposition. A subpoena is issued by the court, and if the witness fails
to comply, he can be held in contempt of court.

* Subpoena duces tecum--an order telling a witness to turn over certain
documents to a specific party or to bring them to a scheduled
deposition. A subpoena duces tecum is issued by the court, and if the
witness fails to comply, he can be held in contempt.

The scope of information obtainable through discovery is quite broad and
not limited to what can be used in a trial. Federal courts and most
state courts allow a party to discover any information "reasonably
calculated to lead to the discovery of admissible evidence." Because of
this broad standard, parties often disagree about what information must
be exchanged and what may be kept confidential. These disputes are
resolved through court rulings on discovery motions.

Example 1: Ellen and Amy have been living together for seven years and
have purchased a car, some furniture and many household goods. They're
going separate ways, but cannot agree on how to divide their property.
Their dispute becomes nastier as the days progress, and Ellen sues Amy,
claiming Amy has breached an oral agreement. Amy's lawyer wants to know
Ellen's understanding of how they owned their property, so he schedules
Ellen's deposition. He will ask Ellen what she understood to be the
arrangement and further will ask her to identify any documents
supporting her position, such as agreements, receipts or bank
statements.

Example 2: Bill and Bernice are divorcing. The court ordered Bill out of
the family home to allow Bernice to stay there with the children. Bill
and Bernice have decided to sell the house, but don't agree on the
value, and therefore each plans to have an appraiser submit an
appraisal. If Bernice refuses to allow Bill's appraiser access to the
house, Bill will have to request an inspection.

STIPULATIONS

A stipulation is an agreement between parties to a lawsuit that a
certain fact may be considered true or that a certain procedure may be
followed in court. Most stipulations are put in writing, but this is
usually not a requirement.

Example: Pedro and Maria are divorcing. During their marriage they
bought a house, which they now agree is worth $140,000. They disagree,
however, as to what portion is Maria's separate property, what portion
is Pedro's separate property and what portion is marital property.
Before their trial, Pedro and Maria will stipulate that the house's
value is $140,000.

SETTLEMENT CONFERENCE

Many states now require parties to family law disputes and their
attorneys to meet before trial with a judge to see if the matter can be
settled. At these settlement conferences, each side makes offers and the
judge comments on their validity and fairness. The judge has no official
power to make the parties settle at this stage, but usually strongly
encourages settlement by bluntly critiquing the parties' trial positions
and indicating how she is likely to rule on disputed issues during the
trial.

MINI-TRIALS AND EARLY NEUTRAL EVALUATIONS

 Many courts encourage the parties to settle without the need for a
formal trial by holding a mini-trial in which the parties present their
evidence and the court decides the outcome. While either party is free
to proceed to a formal trial, regardless of the mini-trial's outcome,
few do.

Another device to get the parties to settle--called early neutral
evaluation--is to have them present their case to an impartial person
(often a retired judge or experienced lawyer) and receive from that
person an honest assessment of who is likely to prevail in trial.

DUE PROCESS

Due process is best defined in one word--fairness. Throughout the U.S.'s
history, its constitutions, statutes and case law have provided
standards for fair treatment of citizens by federal, state and local
governments. These standards are known as due process. When a person is
treated unfairly by the government, including the courts, he is said to
have been deprived of or denied due process.

Example: Ezra and Sharon married in New York and had a son, Darwin. They
divorced and Sharon moved to California; Darwin stayed with Ezra. Darwin
later moved to California to live with Sharon; Sharon sued Ezra for
child support in California. Ezra claimed that because he didn't live in
California and had never been to California it would be unfair (a denial
of due process) for him to defend the child support lawsuit in
California. The U.S. Supreme Court agreed, saying that Sharon should
bring her child support request in New York. (This example is based on a
case called Kulko v. Superior Court, 436 U.S. 84 (1978).)

RETROACTIVE APPLICATION OF LAWS

A statute passed by a legislature usually states that it shall only
apply after a certain date. Occasionally, though, laws are made
retroactive--that is, they apply to events that happened before the law
was passed. (Criminal laws are never retroactive--the legislature cannot
make a past act a crime.) If the statute itself doesn't indicate the
date it is to become effective, courts normally interpret it to have
future effect only.

Example: Assume that the Minnesota legislature passes a law requiring a
couple to undergo a blood test as a requirement of being married. The
legislature intends that it apply to couples both planning to marry and
already married. (Currently, Minnesota does not require blood tests
before marriage.) Applying the law to already married couples is a
retroactive application of the law. A married Minnesotan might challenge
the law arguing that applying it to her is unconstitutional because she
had no expectation of ever having to undergo a blood test as a
requirement of being married in Minnesota.

ESTOPPEL

In certain situations, the law refuses to allow a person to deny facts
when another person has relied on and acted in accordance with the facts
on the basis of the first person's behavior. This is called estoppel.

There are two kinds of estoppel.

Collateral estoppel prevents a party to a lawsuit from raising a fact or
issue which was already decided against him in another lawsuit. For
example, if Donna obtained a paternity judgment against Leroy and then
sued him for child support, Leroy would be collaterally estopped from
claiming he isn't the father.

Equitable estoppel prevents one party from taking a different position
at trial than she did at an earlier time if the other party would be
harmed by the change. For example, if after obtaining the paternity
judgment, Leroy sues Donna for custody, Donna is now equitably estopped
from claiming in the custody suit that Leroy is not the father.

RES JUDICATA

Res judicata is Latin for "a thing adjudicated." This means that once a
matter has been decided by a court, it won't be disturbed. Res judicata
usually applies when a conflict arises between the same parties over the
same facts that were resolved in an earlier case. The court refuses to
hear the matter a second time, citing res judicata.

COLLATERAL ATTACK

When a separate and new lawsuit is filed to challenge some aspect of an
earlier and separate case, it is called a collateral attack on the
earlier case. This is different than an appeal, which is a challenge to
some aspect of a decision made in the same case.

Example: Sam obtains a divorce in Nevada without properly notifying his
wife, Laurie. Laurie files a later lawsuit seeking to set aside the
divorce and start the divorce proceedings over. Laurie's case is a
collateral attack on the divorce.

The law wants judgments to be final whenever possible, and thus
collateral attacks are discouraged. Many are filed, but usually only
succeed when an obvious injustice or unconstitutional treatment occurred
in the earlier case.

EX PARTE

Ex parte means "by one side." Although a judge is normally required to
meet with all parties in a case and not with just one, there are
circumstances where this rule does not apply and the judge is allowed to
meet with just one side (ex parte). In addition, sometimes judges will
issue temporary orders ex parte (that is, based on one party's request
without hearing from the other side) when time is limited or it would do
no apparent good to hear the other side of the dispute. For example, if
a wife claims domestic violence, a court may immediately issue an ex
parte order telling her husband to stay away. Once he's out of the
house, the court holds a hearing, where he can tell his side and the
court can decide whether the ex parte order should be made permanent.

EQUITABLE POWER

If strict application of the law would be unfair to a person, most
courts have the authority, called equitable power, to bend the rules to
prevent such an outcome. English Courts of Equity were established
hundreds of years ago to temper the legalistic rigors of English common
law. Equity principles were adopted by U.S. courts when this country was
formed. Today, when a court exercises equitable powers, it often does so
to prevent one party from taking unfair advantage of another or from
profiting by her own wrongdoing.

CLEAN HANDS DOCTRINE

Under the clean hands doctrine, a person who has acted wrongly, either
morally or legally--that is, who has "unclean hands"--will not be helped
by a court when complaining about the actions of someone else.

In family law, the doctrine is invoked most often in two situations.
First, a parent who kidnaps and then later requests custody will often
be denied custody unless the child is in danger of harm from the other
parent. Second, a spouse who conceals assets or otherwise
misappropriates marital property during the marriage or separation will
often be penalized in the division of property at the divorce by being
awarded less than her fair share. This, of course, requires that the
innocent spouse learn of the concealment or misappropriation.

STATUTE OF LIMITATION

A statute of limitation is a law that sets the deadline for filing a
lawsuit in a particular kind of dispute. These deadlines vary depending
on the state, the type of issue and the circumstances of the case. A
lawsuit filed after the deadline will be thrown out of court.

In California and Texas, for example, when one person breaches a written
contract, the other person has four years to sue; this is called a four-
year statute of limitation. A personal injury suit, such as an assault
and battery case brought by the victim of domestic violence, must be
brought within one year from the date of the injury in California and
within two years in Texas.

There are no statutes of limitation for filing a no-fault divorce.
Filing a fault divorce, however, usually involves a time limitation; for
example, an innocent spouse has only a set period of time after learning
of her spouse's adultery (or desertion or cruelty) to file for divorce
on this ground. Failure of one spouse to file the fault divorce within
the time period may provide the other spouse with a defense to the
divorce.

PRESUMPTION

A fact assumed to be true under the law is called a presumption. For
example, a criminal defendant is presumed to be innocent until the
prosecuting attorney proves beyond a reasonable doubt that she is
guilty. Presumptions are used to relieve a party from having to actually
prove the truth of the fact being presumed. Once a presumption is relied
on by one party, however, the other party is normally allowed to offer
evidence to disprove (rebut) the presumption. The presumption is known
as a rebuttable presumption. In essence, then, what a presumption really
does is place the obligation of presenting evidence concerning a
particular fact on a particular party.

CONCLUSIVE PRESUMPTION

The law does not allow some presumptions to be disproved, no matter how
strong the evidence to the contrary. These are called conclusive
presumptions. The presumption that a child born to a married couple is
considered the child of the husband is often irrebuttable (that is, you
can't argue with it even if you can prove the husband isn't the father).
A growing number of courts, however, have held conclusive presumptions
to be unconstitutional (too unfair, and thus a denial of due process),
especially in the area of paternity, because of blood tests which can
exclude paternity with 100% accuracy.

FULL FAITH AND CREDIT

Full faith and credit is a legal principle requiring judges to recognize
and enforce valid decrees and judgments issued by courts in other
states. Thus, a Wisconsin judgment for back alimony can be enforced in
Idaho, if the recipient takes the steps necessary to convert it to an
Idaho judgment.

In the past, states often did not afford full faith and credit to
custody decisions of courts in other states, preferring instead to
decide the issues on the evidence before them. This often led to
contradictory custody orders and sometimes children were kidnapped and
thrown back and forth. Now, however, the Parental Kidnapping Prevention
Act and the Uniform Child Custody Jurisdiction Act require states to
give full faith and credit to custody decisions rendered in other
states.

COMITY

Comity is the legal doctrine under which countries recognize and enforce
each others' legal decrees. Comity usually arises in two situations in
family law. The first is where a divorce is granted by another country.
If both parties were present and consented to the divorce, there is
usually no problem with the U.S. recognizing the foreign divorce decree.
The second situation arises in child custody cases. The Uniform Child
Custody Jurisdiction Act requires that state courts recognize properly
entered custody decrees of other nations; in turn, many other countries
are beginning to recognize U.S. custody orders.

PRESENTING THE CASE

Witnesses who testify at a trial or hearing are questioned by two basic
techniques--direct examination and cross-examination. Lawyers, or the
parties themselves if they aren't represented by lawyers, do the
examining (questioning).

DIRECT EXAMINATION

Direct examination consists of questions asked in a direct form, that
is, a form which does not suggest the answer, such as "Where were you on
July 18th?" Direct examination is conducted of witnesses who are
friendly to the questioner.

CROSS-EXAMINATION

A question that suggests the answer--for example, "You were at the shop
on July 18th, weren't you?"--is called a leading question and can be
used only on cross-examination. Cross-examination questions are asked by
the party whose position is opposed by the witness.

Sometimes, when parties aren't represented by lawyers, these formal
rules of questioning are not used. Instead, witnesses use narrative
formats and simply tell their stories.

======= SIDE BAR--EXPERT WITNESS

An expert witness is a person who testifies at a trial because she has
special knowledge in a particular field. This entitles her to testify
about her opinion on the meaning of facts. Non-expert witnesses are only
permitted to testify about facts they observed and not their opinions
about these facts. In family law trials, common expert witnesses
include:  * actuaries, who testify about values of spouses' pension
plans for the purpose of dividing them at divorce

* child psychologists or development specialists, who testify about the
best interests of the child when custody or visitation is in dispute

* appraisers, who testify about property values when the parties cannot
agree, and

* career counselors, who testify about a homemaker's ability to return
to the work force for the purpose of determining the amount and duration
of alimony.
=======

BURDEN OF PROOF

The burden of proof refers to the obligation of a party to prove his
allegations during a trial. Typically, the plaintiff must prove whatever
allegations he included in his complaint in order to win his case. The
defendant is given the opportunity to submit evidence to rebut the
plaintiff's case. To rebut generally means to contest a statement or
evidence presented by another.

STANDARD OF PROOF

The amount of evidence which a plaintiff (or prosecuting attorney, in a
criminal case) must present in a trial in order to win is called the
standard of proof. Different cases require different standards of proof
depending on what is at stake. The common standards are:

* Beyond a reasonable doubt (criminal cases)--for a criminal defendant
to be convicted of a crime, the prosecutor must prove her case to the
point that the jurors have no reasonable doubts in their minds that the
defendant did whatever he is charged with having done.

* Clear and convincing evidence (civil cases involving the potential
loss of important interests such as the termination of parental rights)-
-for a party to prove a case under this standard, she must show
something more than it is more likely than not, but not as much as
beyond a reasonable doubt. No legal scholar has ever been able to define
clear and convincing evidence more precisely than that.

* Preponderance of the evidence (most civil cases including fault
divorces)--preponderance of the evidence generally means that a party
will win if she can show that it is more likely than not that her
contention is true.

RULES OF EVIDENCE

Rules of evidence (found in the statutes and court rules of each state)
determine what evidence may be admitted into a trial or hearing and
under what circumstances.

ADMISSIBLE EVIDENCE

Anything a judge allows a jury (or himself) to consider in reaching a
decision during the trial is called admissible evidence because it is
"admitted" into evidence. Many types of evidence are not admissible
because they don't satisfy legal standards of reliability or fairness.
These standards have developed over hundreds of years and are constantly
subject to change.

Example: Laura is six years old, and there is evidence that she has been
abused by her father. Under traditional evidence rules, any statements
Laura made outside of the courtroom to a counselor, parent or other
person concerning the abuse would be considered inadmissible evidence.
Only her statements made in court in front of her father would be
admissible. Because of the difficulty in having a child speak freely in
a court, many states are now experimenting with allowing children to
testify on videotape outside the courtroom and then showing the tape in
court.

The following are types of admissible evidence:

Admissions. An admission is any statement made by a party to a lawsuit
(either before a court action or during it) which tends to support the
position of the other side or diminish his own position. For example, if
a husband sues his wife for divorce on the grounds of adultery, and she
states out of court that she has had affairs, her statement is an
admission. Any admission made by a party is admissible evidence in a
court proceeding, even though it is technically considered hearsay
(which is normally inadmissible). Attorneys tell their clients not to
talk to anyone about their case or about the events leading up to it in
order to prevent their clients from making admissions.

Character evidence. Evidence introduced in a trial which bears on the
truth and honesty of a witness or party is termed character evidence.
Character evidence includes criminal convictions and reputation in the
community for honesty. Character evidence is usually permitted when a
person's honesty is an issue, such as when a criminal defendant
testifies or has been charged with perjury or fraud. It is not permitted
when the defendant does not testify and the crime he is charged with
doesn't involve the defendant's truthfulness (for example, the defendant
is charged with illegal possession of drugs). Although used infrequently
in civil cases, character evidence may be given in custody cases where
the honesty of a party arguably affects her ability to be a good parent
(for example, in the case of a habitual liar), or in cases of fault
divorce.

Circumstantial evidence. Circumstantial evidence is best explained by
saying what it is not--it is not direct evidence from a witness who saw
or heard something. Circumstantial evidence is a fact that can be used
to infer another fact.

Example: Bart is suing his wife, Pam, for a divorce, claiming she is
having an affair with Tony. Tony's fingerprints are found on a book in
Bart and Pam's bedroom. A judge or jury may infer that Tony was in the
bedroom. The fingerprints are circumstantial evidence of Tony's presence
in the bedroom. Circumstantial evidence is usually not as good as direct
evidence (an eyewitness saw Tony in the bedroom) because it is easy to
make the wrong inference--Pam may have loaned Tony the book and then
carried it back to the bedroom herself after getting it back.

Circumstantial evidence is generally admissible in court unless the
connection between the fact and the inference is too weak to be of help
in deciding the case.

======= SIDE BAR--SUPPORTING THE EVIDENCE

Authentication of evidence. When a document or other physical item is
offered into evidence at trial, it is necessary to show that the item is
genuine. This process is called authentication. One way to authenticate
a document is by the testimony of the person who wrote or signed it;
another is by the testimony of an expert witness such as a document
examiner or handwriting analyst.

Corroboration. Corroboration is additional evidence that supports an
accusation or item of circumstantial evidence. For instance, in the case
of alleged adultery, corroboration might consist of a love letter or a
hotel clerk's testimony that the spouse and the co-respondent rented a
room together.
=======

Evidence rules are more often than not defined by what is not
admissible. Here are examples of some often inadmissible evidence:

Immaterial evidence. Evidence deemed too unconnected with the main
issues of a case is considered immaterial and will be excluded from a
trial.

Incompetent evidence. Evidence considered inherently unreliable is
called incompetent and is not admissible in a trial. Examples of
incompetent evidence include secondhand information, observations made
while the witness was drunk or under the influence of drugs, and self-
serving statements.

Irrelevant evidence. Relevancy is the logical connection between facts
or statements, especially those offered as evidence in court. Before
evidence is admitted during a trial or hearing, it must be shown to be
relevant to the issues in the case. Thus, the fact that a spouse has
three bank accounts is irrelevant to the issues in a custody hearing,
but may be quite relevant in one distributing the marital property.

Example: Grace and Ian are divorcing in Michigan, an equitable
distribution state. Grace and Ian have sold their marital home, and the
only issue in their case is the division of the proceeds. The house was
purchased with a combination of Grace's pre-marital savings (her
separate property), Ian's pre-marital savings (his separate property),
and their earnings during marriage. At the trial, Ian asks his friend
Walter to testify that Grace didn't like the house and never wanted to
buy it. Because Walter's testimony is irrelevant to dividing the
proceeds, the judge will not let Walter testify.

Privileged communications. In judicial proceedings, the law allows
people to refuse to disclose the contents of certain privileged
conversations and writings. Communications between an attorney and
client, husband and wife, clergyperson and penitent, and doctor and
patient are all privileged. In a few states, the privilege extends to a
psychotherapist and client.

To qualify for privileged status, communications must generally be made
in a private setting (that is, in a context where confidentiality could
reasonably be expected). The privilege is lost (waived) when all or part
of the communication is disclosed to a third person.

These privileges are held by the client (but not the lawyer), the
patient (but not the doctor or psychotherapist), the speaking (but not
the spoken-to) spouse and both the clergyperson and the penitent. The
lawyer, doctor, psychotherapist and spoken-to spouse, however, cannot
reveal the communication without the other person's consent. The client,
patient, speaking spouse, clergyperson and penitent may waive the
privilege (that is, testify about the conversation) and also may prevent
the other person from disclosing the information.

Example: Sue and Martin are divorcing. When Martin first left Sue, he
emptied out a joint bank account and placed that money in a separate
account in another state. He refuses to tell Sue where the money is, but
he has told his lawyer, Ann. The discussion between Martin and Ann is
privileged, and unless Martin authorizes Ann to tell Sue where the money
is, or unless Martin himself tells another person about his conversation
with Ann, Ann cannot be forced to disclose the information.

Marital communications privilege. Courts cannot force husbands and wives
to disclose the contents of confidential communications made during
marriage. The purpose of the privilege is to protect and promote honesty
and confidence within marriages.

Example: Sandy has a budding marijuana brownie business which she
operates out of her home. Sandy has told her husband, Doug, about her
endeavors. All private conversations between them are privileged; that
is, if Sandy is ever prosecuted for her business, she can prevent Doug
from disclosing what he knows.

Spousal privilege. Courts cannot force husbands and wives to testify
against each other. For example, when a former husband trying to gain
custody of his child called his ex-wife's new husband as a witness to
testify about her treatment of the child, the court refused to force him
to testify on the grounds that it could jeopardize an existing marriage.

======= SIDE BAR--HEARSAY--ADMISSIBLE OR INADMISSIBLE?

Hearsay is any statement made outside a hearing or trial which is
presented at the hearing or trial to prove the truth of the contents of
the statement. All evidence rules begin with the premise that hearsay
cannot be used in court because secondhand testimony is considered
unreliable and because the person who made the original statement is
often unavailable for cross-examination. Statements in the forms of
letters, affidavits, declarations, diaries, memos, oral statements,
notes, computer files, legal documents, purchase receipts and contracts
all constitute hearsay when they are offered to prove that their
contents are true.

Testimony during a hearing or trial is not hearsay unless the witness
tries to repeat something someone else said or wrote. In addition, a
statement introduced to prove something other than its truth is not
hearsay. For example, testimony may be offered to show the speaker's
state of mind.

Example: Dana and Bruce were fighting, and Dana shouted "Bruce, you are
a lousy bastard." Marla heard the argument and was asked to testify at
Dana and Bruce's divorce trial. Marla was permitted to repeat the
statement "Bruce, you are a lousy bastard," because it is not hearsay.
It was not introduced at the trial to prove that Bruce has lice or is an
illegitimate child, but rather to show that Dana was angry.

A witness's earlier out-of-court statement may be presented at a trial
or hearing if it contradicts his in-court testimony, because the
statement is being used to cast doubt on the witness's credibility,
rather than prove the statement's truth or falsity.

A great many exceptions to the hearsay rule exist and much hearsay tends
to be admitted under these exceptions. Evidence which qualifies as
exceptions is usually statements which are reliable and believed to be
unfabricated. Some common exceptions are:

* utterances made at the time of a startling event which provoked the
observer into speaking (for example, seeing one's spouse in bed with
someone else)
* statements describing a current condition (for example, "I feel
sick.")
* prior testimony from a hearing, trial or deposition
* religious records, family records and marriage certificates
* property documents (for example, deeds)
* statements made against one's own monetary or penal interest (that is,
an admission of a crime)
* declarations made by someone who believes his death is imminent
* business records made in the regular course of business
* official records
* ancient documents, and
* court judgments.
=======

DECISIONS

INTERLOCUTORY AND FINAL JUDGMENT

Interlocutory means interim, provisional or not final. In some states, a
divorce occurs in two phases. The first is often called the
interlocutory stage, where all the issues (for example, division of
property, alimony, child support, custody and visitation) get decided
either by agreement of the spouses or by a judge after a hearing or
trial.

The second phase, when the judgment of divorce becomes final, doesn't
occur until after a waiting period--usually two to six months. The
waiting period (sometimes referred to as the cooling-off period) is
designed to give the divorcing couple every opportunity for
reconciliation. It begins on the date the interlocutory judgment is
entered. When the time period passes, if no appeal is pending and if the
appropriate papers have been filed with the court, the final judgment is
entered.

In some states, a party who is eager to remarry as soon as possible can
get the waiting period shortened or set aside entirely, if the judge is
convinced that the reasons are good.

======= SIDE BAR--NUNC PRO TUNC

Nunc pro tunc literally means "now for then." Occasionally, a court or
party to a divorce forgets to file the papers necessary to obtain the
final decree (after the interlocutory judgment has been granted), and
the result is that the divorce never becomes final. If the oversight
presents a problem (for example, one party has already remarried, or
there is a tax advantage to being divorced earlier), the court may agree
to issue a nunc pro tunc order, which grants the final divorce
retroactive to the earlier date.
=======

PENDENTE LITE

Pendente lite means "pending the litigation." When the court makes an
order, for example, for temporary alimony or child support, which lasts
only until the date of a divorce trial or until the parties to a lawsuit
work out a settlement, it is a pendente lite order.

Pendente lite should not be confused with lis pendens. Lis pendens also
means pending lawsuit. But lis pendens is a document filed in the public
records of the county where particular real property is located stating
that a pending lawsuit may affect the title to the property. Because
nobody wants to buy real estate if its ownership is in dispute, a lis
pendens notice effectively ties up the property until the case is
resolved. Lis pendens notices are often filed in divorce actions when
there is disagreement about selling or dividing the family home.

RULING

Any decision made by a judge during the course of litigation is called a
ruling. For example, if a court grants a father custody after a trial on
the custody issue, that is a ruling. Also, if a court sustains or
overrules an objection to evidence raised during a trial, that is a
ruling.

JUDGMENT

A final decision made by a judge on a material issue during a case is
termed a judgment. A judgment can provide all or a portion of the relief
sought in a case, including property division, alimony, child support,
custody or an injunction.

In most states, the court order granting a divorce and ruling on the
issues associated with the divorce (alimony, child support, custody,
visitation and division of property) is called a decree. Decrees can be
temporary, interlocutory (semi-permanent) or permanent. For all
practical purposes, a decree is the same thing as a judgment.  JUDGMENT
NISI

Nisi is Latin for "unless." A judgment nisi is an intermediate judgment
which will become final unless a party appeals or formally requests the
court to set it aside. An interlocutory decree is properly referred to
as a judgment nisi.

ENTRY OF JUDGMENT

When a court judgment (such as a judgment of divorce) is actually
written into the official court records by the court clerk, the judgment
is "entered." The court clerk sends a notice of the entry to each party.
The date the judgment is entered can be important. For example, if one
party wants to appeal, he usually has ten to 30 days from the date of
entry of judgment to file a paper indicating his intent to appeal. Also,
some states require an individual to wait a period of time (20 days to
18 months) after the entry of judgment of divorce before remarrying.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

After trial of a family law case, the judge often will issue findings of
fact and conclusions of law, especially if requested to do so by a
party. These set forth the facts the judge found to be true and the
conclusions of law he reached regarding those facts. This allows a
losing party to know how and why the judge reached his decision and
whether an appeal is warranted. If the losing party appeals, the
appellate court will determine whether the factual findings are
supported by the evidence and whether the legal conclusions are correct.
If the court answers either question in the negative, the case will
usually be reversed and sent back to the trial court for a new trial.

AWARD

Award means the amount and/or form of a judgment a judge or jury gives
the successful party in a lawsuit. It is often, but not always, an
amount of money.

Example: In a divorce case, one party might be awarded the divorce, $300
per month in alimony, custody of the children, $600 per month in child
support and the family home. The other party might be awarded the family
business.

ACTUAL DAMAGES

When damages, which have been suffered by someone as a result of
another's wrongdoing, can be precisely measured, they are called actual
damages. Examples of actual damages are:

* loss of income because of an injury * medical expenses * costs of
repairing damaged property, and * specific business losses occurring
because of a breach of a contract.

Actual damages are rarely awarded in family law cases, although some
states now allow a parent to recover from his child's other parent the
actual damages suffered if thwarted when trying to exercise visitation
rights. An example is the visiting parent who buys a non-refundable
plane ticket to have his child visit him, only to find out that the
child has suddenly been shipped off to his grandmother's.

PUNITIVE DAMAGES

Punitive damages are damages (money) awarded by a court to the
prevailing party in a lawsuit to punish the other party for her behavior
and set an example for others. Actual damages are awarded to compensate
a party for loss he has suffered. Most family law cases do not include
punitive damages because these cases mainly involve dividing property,
deciding child support and alimony, awarding custody or granting
adoptions. A few family law cases, however, especially those for
monetary compensation where there has been domestic violence or where
one party has committed fraud against the other concerning marital
property, may include punitive damage awards.

EQUITABLE RELIEF

In many situations, a court cannot achieve a fair result simply by
awarding the winner a sum of money. A non-monetary award by a court is
called equitable relief. For example, if a woman is the victim of
domestic violence, a later award of money may compensate her for her
medical costs, but will not prevent her from being further injured. In
this situation a court may grant equitable relief in the form of a
temporary restraining order (TRO), ordering the abuser to stop the abuse
and leave the family home. Violation of the TRO (called contempt) can be
punished by a jail sentence.

Other examples of equitable relief include:

* Ordering property returned to its owner. This may arise if one spouse
locks the other out of the family home and refuses to turn over his
belongings.
* Rewriting a divorce agreement (or any other contract) to reflect the
actual intentions of the parties if a mistake was made in drafting.
* Ordering an agreement, such as a contract for sale of a house, to be
carried out.

INJUNCTION

A court order requiring a person to do (or preventing a person from
doing) a certain action is called an injunction. For example, if a party
has threatened to remove marital property, or has threatened to kidnap,
a court might prohibit the party from touching any marital property or
removing the child from the county.

Emergency injunctions that are in effect only a short time are called
temporary restraining orders. Courts also issue permanent injunctions
which stay in effect indefinitely.

APPEAL

When one or both parties to a lawsuit disagree with the result in the
trial court, it is usually possible to get a higher court (called an
appellate court) to review the decision. Normally, an appellate court
reviews only whether the trial court followed the correct law and
procedures, and no evidence is presented. Some states have two levels of
appeals courts; an appeal is usually first considered by an intermediate
court (often called a court of appeals). If a party is still unhappy
with the result, it is sometimes possible to get the state's highest
court (usually called the supreme court) to review the case.

To appeal the trial court's decision, a notice must usually be filed
with the trial court within a short period of time (usually about 30
days) after the entry of judgment by the court clerk.

The appellate court will require that both sides submit briefs and may
also require the parties to orally argue before the court. After
weighing the evidence submitted, the court makes its ruling, called a
holding. The likely outcome of the appeal will be one of the following:

Affirm. The act of an appellate court upholding a decision of a trial
court or a lower appellate court is called affirming the decision.

Remand. When an appellate court sends an appealed case back to the trial
court for further action, the case is said to be remanded. This usually
happens if the trial judge has made an error which requires a new trial
or hearing. For example, assume that a trial court refuses to allow a
party to introduce certain evidence (believing it to be inadmissible
under the hearsay rule). If the appellate court decides that the
evidence should have been admitted and that the exclusion of the
evidence was prejudicial to the party offering it, the appellate court
would likely remand the case for new trial and order the evidence
introduced.

Vacated judgment or opinion. When an appellate court replaces a decision
issued by a trial court or lower appellate court with its own opinion or
judgment, the higher court usually declares the lower court's opinion or
judgment vacated. A vacated opinion or judgment is considered to have
never existed and cannot be used as authority when deciding similar
future cases.

Reversal. If an appellate court rules that a trial court or lower
appellate court made errors that may have caused an incorrect outcome in
a case, the appellate court can do a number of things, including:

* reverse (wipe out) the outcome and send the case back for a new trial,
if the error occurred during trial * substitute a new decision, if the
error occurred at the first appeal, or * modify the outcome, for
example, reduce the amount of damages.

In deciding an appeal, the court applies the following standards to the
behavior of the trial judge:

Abuse of discretion. When judges make decisions on questions of child
custody, alimony and property division, they must, of course, follow the
standards set out by state law. These standards, though, often allow
judges a lot of leeway (which is called discretion). Judges are given
this discretion so they can make decisions that are fair in a particular
case, instead of being locked into a formula that may not suit every
situation.

The exercise of judicial discretion is difficult to attack on appeal,
because the decision, by law, was left to the judge in the first place.
Nevertheless, judicial discretion must be exercised fairly and
impartially, and a showing to the contrary may result in the ruling
being reversed as an abuse of discretion.

Erroneous. When a trial court makes a mistake about the law or finds
certain facts to be true without adequate evidence, the court is in
error. If the error affects the outcome of the case, it is called a
prejudicial error, and the decision may be reversed on appeal. If this
happens, the case is usually returned to the trial court for new trial.
If, however, the error made in the course of a trial does not affect the
outcome of the case (called a harmless error), an appellate court will
not reverse the trial court decision.

Arbitrary and capricious. When a judge makes a decision without
reasonable grounds or adequate consideration of the circumstances, it is
said to be arbitrary and capricious and can be invalidated by an
appellate court on that ground. There is, however, no set standard for
what constitutes an arbitrary and capricious decision; what appears
arbitrary to one judge may seem perfectly reasonable to another.

Example: Paul and Myra, both in their mid-30s, are involved in a
disputed custody case. Both parents are fit to have custody of the
child, so the judge must review all relevant information and decide what
is in the best interest of the child. Myra raised the fact that when
Paul was 16, he pleaded guilty to possessing marijuana. Based solely on
Paul's previous conviction, the judge awarded custody to Myra. Paul
appealed, arguing that the judge's decision was arbitrary and
capricious, that his conviction nearly 20 years earlier was irrelevant,
and that there is no reasonable basis to support the decision. The
appellate court judges will make the decision.

======= SIDE BAR--FRIVOLOUS APPEAL

An appeal without any arguable legal basis is called a frivolous appeal
and can be dismissed (thrown out) by the appellate court. Because
lawyers can create a plausible legal basis for almost any argument
imaginable, however, few appeals are ever ruled frivolous. The most
outrageous time-waster is usually only said to "border on the
frivolous."
=======

ALTERNATIVES TO COURT

Any process that helps people put an end to their disputes is called
dispute resolution. While courts have been a central feature of our
public dispute resolution system for a long while, most disputes have
traditionally been solved by consensus (agreement of the disputants)
with the help of community and religious leaders, with no government
intervention being necessary.

In recent years, as the courts have become more and more crowded, a
number of alternative dispute resolution techniques (ADR) have arisen to
aid people in solving their disagreements and getting on with their
lives. And the courts themselves are increasingly relying on these
techniques to clear their crowded calendars and help parties to solve
their own problems.

The most common forms of alternative dispute resolution (sometimes
referred to as appropriate dispute resolution) are mediation,
arbitration, conciliation and a combination of mediation and arbitration
called med-arb (in which the mediator will decide the issues for the
parties if they fail to reach agreement in the mediation).

Mediation. Mediation is a non-adversarial process where a neutral person
(a mediator) meets with disputing persons to help them settle the
dispute. The mediator, however, does not have the power to impose a
solution on the parties.

Mediation is often used to help a divorcing or divorced couple work out
their differences concerning alimony, child support, custody, visitation
and division of property. Some lawyers and mental health professionals
employ mediation as part of their practice. Six states require mediation
in custody and visitation disputes. Eighteen states allow courts to
order mediation while one state permits voluntary mediation. (These
states are listed in Table 5.2 in the appendix.) A few states have
started using mediation to resolve financial issues as well.

Conciliation. In conciliation, the parties meet unantagonistically with
a third party who helps them reach an agreement. It is very similar to
mediation.

Arbitration. Arbitration is the submission of a dispute to an impartial
third person or persons. The arbitrator or arbitrators are selected
directly by the parties or are chosen in accordance with the terms of a
contract in which the parties have agreed to use a court-ordered
arbitrator or an arbitrator from the American Arbitration Association.
If there is no contract, usually each party chooses an arbitrator and
the two arbitrators select a third. When parties submit to arbitration,
they agree to be bound by and comply with the arbitrators' decision. The
arbitrators' decision is given after an informal proceeding where each
side presents evidence and witnesses.

Some arbitration proceedings are mandatory (enforced by statute), such
as many labor disputes. Other arbitration proceedings are selected in
advance and written into contracts. In fact, many couples who sign
cohabitation agreements or divorce agreements include a clause agreeing
to go to arbitration if any dispute should arise, thereby avoiding the
delay, expense, bitterness and formality of litigation. Other
arbitration proceedings are chosen by the disputing parties after the
conflict arises, but are also to avoid the delay, expense, bitterness
and formality of courts.

CIVIL & CRIMINAL

TORT

A tort is an act that injures someone in some way, and for which the
injured person may sue the wrongdoer for damages. Legally, torts are
called civil wrongs, as opposed to criminal ones. (Some acts like
battery, however, may be both torts and crimes; the wrongdoer may face
both civil and criminal penalties.)

Under traditional law, family members were prohibited from suing each
other for torts. The justification was that allowing family members to
sue each other would lead to a breakdown of the family. Today, however,
many states recognize that if family members have committed torts
against each other, there often already is a breakdown in family
relationships. Thus, they no longer bar members from suing each other.
In these states, spouses may sue each other either during the marriage
or after they have separated.

Normally, tort lawsuits against a spouse are brought separate and apart
from any divorce, annulment or other family law case. Alabama, Georgia,
Nevada, New York and Tennessee, however, allow or encourage combining
the tort case with the family law case; New Jersey requires it.

The jurisdictions that still prohibit one family member from suing
another include Arizona, Delaware, Hawaii, Illinois, Iowa, Louisiana,
Missouri, Ohio, Texas, Utah, Wyoming and Washington, D.C. These places
may make an exception when the tort is intentional. See, for example,
Bounds v. Candle, 611 S.W.2d 685 (Texas 1980); Townsend v. Townsend, 708
S.W.2d 646 (Missouri 1986) and Green v. Green, 446 N.E.2d 837 (Ohio
1982).

CRIME

A crime is a wrongdoing classified by the state or Congress as a felony
or misdemeanor.

Felony. A felony is a serious crime punishable by at least one year in
prison. Some family law felonies include kidnapping and custodial
interference (in some states).

People convicted of felonies lose certain rights, such as the right to
vote or hold public office. During the term of sentence, the convicted
person may also be prohibited from making contracts, marrying, suing or
keeping certain professional licenses. Upon release from prison, the
convict may also be required to register with the police.

Misdemeanor. A misdemeanor is a crime for which the punishment is
usually a fine and/or up to one year in a county jail. Often a crime
which is a misdemeanor for the first offense becomes a felony for
repeated offenses. All crimes that are not felonies are misdemeanors.

======= SIDE BAR--CONTEMPT OF COURT--CIVIL OR CRIMINAL

A judge who feels someone is improperly challenging or ignoring the
court's authority has the power to declare the defiant person (called
the contemnor) in contempt of court. There are two types of contempt--
criminal and civil. Criminal contempt occurs when the contemnor actually
interferes with the ability of the court to function properly--for
example, by yelling at the judge. This is also called direct contempt
because it occurs directly in front of the judge. A criminal contemnor
may be fined, jailed or both as punishment for his act.

Civil contempt occurs when the contemnor willfully disobeys a court
order. This is also called indirect contempt because it occurs outside
the judge's immediate realm and evidence must be presented to the judge
to prove the contempt. A civil contemnor, too, may be fined, jailed or
both. The fine or jailing is meant to coerce the contemnor into obeying
the court, not to punish him, and the contemnor will be released from
jail just as soon as he complies with the court order. In family law,
civil contempt is one way a court enforces alimony, child support,
custody and visitation orders which have been violated.
=======

From 'Nolo's Pocket Guide to Family Law'
by Attorneys Robin Leonard & Stephen Elias
Copyright (c)  1994 Nolo Press
[We strongly urge you to buy this and other Nolo Products!
  Call them at 1-800-992-6656 to order. - 'LLL Staff]

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