Real Estate Terms

REAL ESTATE TERMS YOU SHOULD KNOW



A


Action: An action is another name for a lawsuit or court case.

Adjusted Gross Income (AGI): This is an Internal Revenue Service term that describes a person’s gross income minus certain specific deductions. Your annual income taxes are based, not on the total amount of money you earn, but on your adjusted gross income.

Adjustable Rate Mortgage (ARM) A mortgage loan where the interest rate is not fixed for the entire term of the loan, but changes during the loan in line with movements in an index rate.

Affidavit: This is a written statement of facts made under oath. Witnesses must swear that the facts they make in an affidavit are true. Generally, a notary public must attest that the witness’ signature is real.

Age of majority: This is the age at which a young person legally becomes an adult. The age of majority in California, it’s 18. Child support is typically paid until their 18th birthday or when they graduate from High School.

Agreement: An agreement is a verbal or written resolution of issues.

Alimony (Maintenance/Spousal Support): Alimony refers to the payments made by one person to his/her spouse or former spouse during and after a divorce. Usually, alimony payments are based upon income, with the spouse who makes more money paying the spouse who makes less. The other factor is how long was the marriage? The two most important questions regarding alimony are: How much? How long?

Alternative Dispute Resolution (ADR): Historically, litigation (a/k/a fighting in court) was the only way to get a divorce. Every divorce process OTHER THAN litigation is an alternative to litigation. Mediation, Arbitration and Collaborative Divorce are the three main alternative dispute resolution processes in divorce.

Amortization: Amortization refers to the equal loan payments calculated to pay off the debt at the end of a fixed period, including accrued interest on the outstanding balance. A fully amortized loan will be completely paid off at the end of the loan term. 

Annual Percentage Rate (APR): An interest rate reflecting the cost of a mortgage as a yearly rate. This rate is likely to be higher than the stated note rate or advertised rate on the mortgage, because it takes into account points and other credit costs. The APR allows homebuyers to compare different types of mortgages based on the annual cost for each loan.

Appearance: In divorce terms, an appearance is a legal document that one party files in order to take part in a case. The document is literally a form that’s titled Appearance. When a Respondent or Defendant (or his/her lawyer) files an Appearance, s/he appears in court. By doing so, that party subjects him/herself to the jurisdiction of the court.

Appraisal An estimate of the value of real property, made by a qualified professional called an “appraiser.” An appraisal will be needed to determine the value of your property.

Arrearage (Arrears): An arrearage is an amount of money that is past due. In divorce terms, the word arrearage typically refers to a past due amount owed for child or spousal support. For example, if Spouse A is supposed to pay Spouse B $5,000 per month for support and Spouse A doesn’t make that payment for 6 months, Spouse A has a $30,000 arrearage that s/he owes to Spouse B.

Annulment: An annulment ends a marriage and treats that marriage as if it never took place. A legal annulment has different requirements than a religious annulment. In California, you can only get a legal annulment under certain very limited circumstances.

Answer: In divorce terms, an Answer is a written legal document. It usually refers to a written response to a complaint, petition, or motion.

Appeal: An appeal is the process by which a higher court reviews the decision of a lower court. If the higher court determines that the lower court messed up, it can amend the lower court’s decision. It can also return the case to the lower court for a new trial.

Arbitration: A divorce arbitration is similar to a trial, only it takes place outside of court. An arbitrator, not a judge, presides over the arbitration hearing. The arbitrator then decides the issues in the case. (NOTE: a judge still must sign off on the arbitrator’s order. Only a judge can divorce you.)

Attorney’s Fees: The money you pay your divorce attorney. In some cases, you may also have to pay your spouse’s attorney’s fees.

B


Best Interests of a Child: The best interest of a child is the standard the court uses to decide custody, parenting time, and other parenting issues. In the broadest sense, doing what’s in the best interest of a child means doing what is necessary to foster the child’s happiness, security, mental health, and emotional development. Typically, a judge has the discretion to determine what is in the best interest of a child in divorce and parentage cases.

C


Case Management Conference: This is a meeting between the Judge and all the attorneys in a case. The goal of a Case Management Conference is to: 

Set a trial date;

Determine what needs to be done so that the trial can take place. (For example, parties need to exchange discovery, take depositions, and complete a lot of other steps before trial.); and set deadlines for getting everything done.

Cash Out: Any funds disbursed directly to the borrower. (See Equity Buyout)

Change of Venue: A change of venue typically means a change in courthouse (i.e. moving the case to a different location). In some states, a change of venue may also refer to a change of judge. (Although in other places a change of judge is just called: a change of judge.)

Child support: This is money that one parent pays to another to support their child(ren). Child support is typically intended to cover child(ren)’s food, clothing, and shelter. It is usually (but not always) paid by the non-custodial parent to the custodial parent.

Closing Costs: Usually include an origination fee, discount points, appraisal fee, title search and insurance, survey, taxes, deed recording fee, credit report charge and other costs assessed at settlement. The costs of closing usually are about 3 percent to 6 percent of the total mortgage amount. Or any costs being charged to facilitate granting of the credit request.

COBRA: This is an acronym for the Consolidated Omnibus Budget Reconciliation Act. This is a federal law that requires an employer which provides group health insurance to allow a former dependent (e.g., a divorced spouse) to continue to get health insurance in the group plan for a set period of time. The divorced spouse has to pay the cost of the insurance, which includes not only the employee’s cost, but the employer’s cost as well.

COLA: This is the acronym for Cost of Living Adjustment. It refers to a specific increase, typically in support that will happen every year as the cost of living increases.

Collaborative Divorce: Collaborative Divorce is a specific divorce process in which a couple agrees to resolve their divorce in a conference room rather than a courtroom. In Collaborative Divorce, both spouses have attorneys who were trained in the Collaborative Process. They may also have one or two divorce coaches, a child specialist, and a neutral financial professional as part of their divorce team. What makes a Collaborative Divorce different from every other kind of divorce is that at the beginning of the divorce process, everyone signs a written agreement that the couple will not take the matter to court. If either spouse does go to court, all of the divorce professionals, including the attorneys, must withdraw from the case. The couple then has to begin their divorce process in court with new divorce attorneys.

Commingling: In the context of divorce commingling refers to mixing marital and non-marital property together during a marriage. Commingling marital and non-marital property generally turns all the property into marital property.

Community Property: California is a community property state, and typically, all income or property that was obtained during the marriage, except gifts and inheritances is community property. Community property is considered to be owned equally by both parties and is generally divided equally in a divorce.

Consolidation: Consolidation is the joining of two cases involving the same parties and related issues. For example, if one couple has both a divorce or parentage case and a domestic violence case pending between them, the court may consolidate the cases so that it can resolve all issues at once.

Contempt of Court: Contempt of Court is the willful failure to comply with a court order, judgment, or decree. If someone is found to be in contempt of court they may be punished by having to pay a fine or being thrown in jail.

Contested Divorce: A contested divorce is any divorce where the parties don’t agree on all issues. If divorcing parties don’t agree on everything, their case will go to trial. Then the judge will decide the case for them.

Corroborative Witness: A corroborative witness is a person who testifies in court and backs up someone else’s story.

Court Order: A court order is a written instruction from the court. Court orders carry the weight of the law. They are not suggestions. Complying with court orders is mandatory. Anyone who knowingly violates a court order can be held in contempt of court.

Credit Score: The score given to an individual to determine the credit worthiness. These scores come from TRW, Equifax and Trans Union. There are many different types of scores, most get their consumer score, whereas mortgage lenders use the clients’ mortgage version.

Cross-Examination: Cross-examination is the questioning of a witness presented by the opposing party at trial or at a deposition. The purpose of cross-examination is to test whether what the witness is saying is true.

Custodial Parent: The custodial parent is the one who has primary residential custody of the child. The custodial parent usually has more than 50% of the time with the child in a year. In states, like Illinois, which no longer use the term child custody, the custodial parent is the parent who the divorce papers designate as the residential custodian for school or other purposes.

Custody: Judges evaluating custody cases in California must consider the best interests of the children in reaching a conclusion about how parents will share time with the children. Both parents begin with equal rights to custody; a judge is not permitted to give a preference to either parent based upon the parent’s gender. There are two primary types of child custody in divorce: legal custody and residential custody. If parents have the right to make decisions jointly for their child(ren), they have joint legal custody. If one parent can make decisions for the child(ren) on his/her own, that parent has sole legal custody. 

D


Debt-to-Income Ratio (DTI):The customer’s monthly obligations (including their proposed housing expenses and all installment, revolving and legal obligations) divided by their monthly gross income.

Decree (Divorce Decree): A divorce decree is the final divorce judgment. It is the piece of paper that officially ends your marriage. Only a judge can sign a divorce decree.

Deed of Trust: A document used which pledges real property to secure a debt. In California a deed of trust is used in place of a mortgage.

Default: A party is in default if s/he doesn’t answer a complaint, motion or petition in court. If one spouse totally refuses to participate in the divorce, after being served with a summons, the other spouse can get a divorce by default.

Deferred Compensation Package: A deferred compensation package includes all retirement assets, such as pensions, 401K’s, IRA’s, and any kind of postponed income which was earned during the marriage. A party can earn this kind of deferred compensation before, after or during a marriage.

Deposition: A deposition is an oral question and answer session taken out of court under oath. Typically, a court reporter records a deposition. If requested, the court reporter can transcribe his/her notes into a written deposition transcript. If a witness later tires to change his/her testimony, a lawyer will use that witness’ deposition transcript to discredit him/her in court.

Direct Examination: Direct examination is the initial questioning of a witness. When an attorney calls a witness to the stand and asks the witness questions, that’s direct examination. When the opposing lawyer questions the witness, that’s cross-examination.

Discovery: This refers to the court process by which one party can discover information from another party or a third party. Discovery can include depositions, written interrogatories, notices to produce documents, and requests to admit facts.

Dismissal: A dismissal ends a court case without a trial. A dismissal can be voluntary (i.e. someone voluntarily drops their case.) A judge can also dismiss a case for various legal reasons.

Dissolution of Marriage: This is another word for divorce. A dissolution of marriage is the legal process of ending a marriage.

Divorce: A divorce is the legal end of a marriage.

Docket: The court’s calendar/schedule is called a docket.  Cases that are on the docket on a particular day are those which are set for some kind of court activity that day. That activity could be a hearing or the presentation of a motion. Or, it could be a status hearing, pretrial conference, or trial.

Domestic violence: Domestic violence is violence that occurs between household members. It can be physical violence, emotional or stalking. It can also be threats of violence. Domestic abuse can occur inside the home, or at one person’s work.  Domestic violence can occur between spouses or between a spouse and children.

E


Earning Capacity: A person’s earning capacity is their ability to earn money. A person’s education, experience, age, etc., will all influence their earning capacity.

Emancipated: A child is emancipated when s/he is no longer under his/her parents’ control. In California, a child can become emancipated when s/he reaches the age of 18 (majority), marries, or enlists in the military. Usually, parents must support their children until they are emancipated.

Equity Buyout:This is the court mandated agreement for the retaining spouse (or party) to pay off the departing spouse (Parties). This is typically used in a divorce situation (It may also be used in a probate) when the cash-out from the mortgage goes to the departing spouse. This allows the lender to offer remaining party a lower interest rate than a typical cash-out refinance. 

Escrow: Refers to a neutral third party who carries out the instructions of both the buyer and seller to handle all the paperwork of settlement or “closing.” Escrow may also refer to an account held by the lender into which the homebuyer pays money for tax or insurance payments.

Escrow Instructions: The escrow agent gives the parameters and contingencies involved in the transaction and agreed upon by both parties.

Escrow (Impound) Waiver: The Request for a borrower to pay their own taxes and insurance. Escrow wavers are not granted in California with less than a 10% equity position (<90 LTV).

Evidence: Evidence is legal proof of something. Parties present evidence at hearings and trials. They may also present evidence to support a petition or motion. Oral testimony, written documents, and physical objects can all be evidence. They can all potentially be used in court. (That is, of course, assuming that they are relevant.)

Exhibits: An exhibit is evidence that’s used in court. It can be a written document or report. Or, it can be a physical object. Exhibits can be attached to petitions or motions to support the arguments in the petition or motion.  They can also be presented as evidence at trial.

Ex Parte: Ex parte is a Latin term that means without a party.  Courts don’t like ex parte hearings. They prefer to give both parties a chance to present their arguments on an issue. If one party isn’t present at a hearing, s/he can’t defend his/her position. Courts will only grant ex parte hearings in emergencies if a party can show that s/he would suffer irreparable harm if s/he notified the other party of the hearing in advance.  Hearings for Temporary Restraining Orders (TROs) and Orders of Protection can initially be ex parte hearings.

Expert Witness: An expert witness is a professional whose testimony and/or reports help a judge reach a decision in a case. In divorce cases, typical expert witnesses are forensic accountants, business valuation experts, and child specialists.

F


File/Filing: To file something in court means to place a document in the official custody of the clerk of the court.

Financial Affidavit/Statement: This is a standard court form used to collect financial data in a divorce. Typically, each state, or each court within a state, has its own financial affidavit or statement. The court requires parties in a contested divorce case to file financial affidavits. Both parties usually complete a Financial Affidavit with the help of their divorce attorney. (That is, of course, assuming they are using attorneys!) The party completing an affidavit must sign it under oath and attest to its accuracy and completeness.

Foundation: In order to present evidence in court, the party offering the evidence must first lay a proper foundation for the evidence. Generally, this includes proving to the court that the piece of evidence is genuine, relevant, and authentic, among other things. A court will not consider evidence that lacks a proper legal foundation.

G


Gross Income: Gross income is total income from all sources.  It is the income you get before you pay federal/state taxes, Medicare, Social Security, union dues, or make your retirement contributions.

Grounds for Divorce: In California the only ground for divorce is now irreconcilable differences.

H


Hazard Insurance (Fire Insurance or Homeowners’ Insurance): A form of insurance in which the insurance company protects the insured from specified losses, such as fire, windstorm and the like, it would not cover earthquake, riot, or flood damage.

Hearing: A hearing is any proceeding before a judicial officer (i.e. a judge, magistrate or hearing officer).

Hearsay: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Generally speaking, hearsay can’t be used in court.  It’s not admissible evidence. However, there are numerous exceptions to the hearsay rule. If you’re not a lawyer, figuring out what is or is not hearsay can be tricky.

I


Impound (Escrow Account): That portion of a borrower’s monthly payments held by the lender or servicer to pay for taxes, hazard insurance, mortgage insurance, lease payments, and other items as they become due. Also known as reserves.

Innocent Spouse Rules: These are Internal Revenue Service rules that protect one spouse from the other spouse’s tax fraud or tax-related misconduct. For example, if both spouses signed joint income tax returns and one spouse lied about his/her income on the return, the spouse who didn’t lie can ask the IRS not to go after him/her for the back taxes, penalties, and interest due. Of course, if the innocent spouse KNEW his/her spouse was hiding income s/he is not so innocent, right?!

In Pro Per: The term pro per is Latin for one’s self.  In Pro Per, or more specifically,  In Propria Persona, appears after the heading “Attorney For:” In the context of litigation, going pro per means representing yourself in your divorce without a lawyer.

Interspousal Transfer Deed: This document releases or relinquishes a legal claim or right to something. In the context of family law this transfers the ownership of real property between a married couple.  The benefit is that the tax basis is not changed when this document is recorded by the county. Interrogatories: Interrogatories are a series of written questions that one party requires the other party to answer. These questions allow parties to discover relevant facts and information from another party in a lawsuit. The party who answers interrogatories must sign the answers under oath.

Irreconcilable Differences: Irreconcilable differences are the standard no-fault ground for divorce. In divorce terms, having irreconcilable differences means that you and your spouse didn’t get along. Aka, no-fault divorce.

J


Joint legal custody: Joint legal custody exists when both parents have a right to make important decisions about their child’s welfare. Generally, these decisions involve education, healthcare, medical care and extra-curricular activities.

Judgment (Judgment for Dissolution of Marriage/Divorce Decree): A Judgment is a final Court Order that disposes of all issues in a case. A Divorce Judgment is another name for a Divorce Decree. It is the final order of the trial court in a divorce case.

Jurisdiction: Jurisdiction refers to the power of a particular court has over the parties and subject matter of a lawsuit. When a court has jurisdiction over someone it has the power to make decisions that will bind that person.

L


Legal custody: Legal custody refers to a parent’s right to make important decisions for their child(ren). If parents have the right to make decisions jointly for their child(ren), they have joint legal custody. If one parent can make decisions for the child(ren) on his/her own, that parent has sole legal custody. In Illinois, the legislature has replaced the divorce term legal custody with parental decision-making rights/responsibilities.

Legal Separation: A legal separation is a formal legal division of property for a married couple that wants to separate but not divorce. In a legal separation, the court can also enter orders regarding spousal support and determine responsibility for the couple’s children. The reason some people want a legal separation is because their religion doesn’t allow them to divorce, or they can’t get medical insurance if they’re divorced. A decree of legal separation does not dissolve the marriage. Legally separated spouses cannot remarry. Some states do not recognize legal separation.

Lis Pendens: This is a Latin term. It means during the pending lawsuit. A lis pendens generally prohibits someone from transferring property that is involved in a lawsuit. Most divorces involve marital homes. So, in a divorce, the marital home is property involved in a lawsuit.  Very specific rules apply to Lis Pendens. If you have questions about lis pendens, ask your attorney.

Litigation: Litigation means going to court. It is the process by which parties to a dispute can get their issues resolved by a judge. In divorce terms, litigation generally refers to a contested divorce case.

Loan Estimate: Good Faith Estimate of buyers loan charges that must be given within three day of beginning an application. It replaces what was the Good Faith Estimate.

Loan-To-Value Ratio (LTV): The relationship between the amount of the mortgage loan and the appraised value of the property expressed as a percentage.

Lump-Sum Alimony (Lump Sum Spousal Support/Maintenance): Lump-sum alimony is alimony that one party pays in lump-sums rather than on a monthly basis. A party can pay lump-sum alimony in one lump. Or s/he can pay it in several lumps.

M


Maintenance (Alimony/Spousal Support): See Alimony.

Marital Property (Community Property): There are only two kinds of property in divorce: marital property and non-marital property. California is a community property state, and all of your property is either community property or separate property. Generally, marital property is all property earned or acquired during a marriage. A valid prenuptial agreement can change whether property is considered to be marital or not. For example, if you and your spouse have a prenup that says that any business you create during your marriage will be separate property, then your business will be separate property. Without that kind of an agreement, a business you create during your marriage will probably be marital property.

Marital Settlement Agreement (MSA): This is a written document that lays out the financial details of the parties’ divorce settlement. It typically addresses child support, children’s expenses, maintenance/alimony, the division of property and debt, taxes, and other financial details of the parties’ divorce.

Mediation: Divorce mediation is a form of alternative dispute resolution that resolves divorce cases outside of court by helping the parties reach a mutual agreement. A trained mediator who is a neutral third party conducts a mediation. Sitting judges typically do not act as mediators.

Mediator: A divorce mediator is a specially-trained, neutral, third-party intermediary. Mediators facilitate conversations between couples. Mediators help couples talk to each other so that they can reach agreements in their divorce.  In the family law context, mediators are often family law lawyers, divorce financial planners, or mental health professionals.

Modification: A modification is a written change in the divorce judgment. Parties can agree to modify a judgment. If both parties don’t agree, one party can petition the court to modify a judgment based on a substantial change in circumstances.

Motion: A motion is a request for the court to do something. Parties can only file a motion in an existing case. A motion is never the first document that you will file to start a divorce or parentage case. A motion can be oral or written. There are numerous different kinds of motions a divorcing party can file. For example, there are discovery motions, motions to set parenting time, motions to establish temporary support, etc.

Motion to Modify: A motion to modify is usually a request for the court to change a prior order. It may be a request to change residential or legal custody. It may be a request to change the child support or spousal support that currently exists. Or it may be a request to change any other prior order. Motions to modify can be made during or (in some circumstances) after a divorce decree has been entered.

N


Noncustodial parent: This is the parent who doesn’t have residential custody of the child(ren). It is the parent whom the children don’t live with most of the time.

Non-marital property (Separate property): Non-marital property is property that is not marital. Property that one spouse owned before s/he got married can be non-marital property. Property that one spouse received as a gift or inherited during the marriage can be non-marital. In community property states, non-marital property is called separate property. (NOTE: The way property is titled doesn’t usually matter. If you buy a house or a car with marital money, it doesn’t matter whether you only put it in your name. It’s still marital property.)

Note: Short for promissory note. This document gives the parameters of the loan and legally obligates the borrower to pay back the debt.Notice: In legal terms, notice is the formal legal process of informing one party about a legal action or a particular proceeding in a legal action involving that spouse. The rules relating to notice vary from court to court. But, in general, one spouse can’t ask the court to rule on motions unless that spouse gave the other spouse notice of the hearing. A notice is typically a written legal document that’s entitled: Notice.

Nuptial: Nuptial comes from a Latin word that means pertaining to marriage. Nuptials usually refers to a wedding.

O


Opposing Party: The opposing party is the party who opposes you in a court case. In a divorce or family law case, the opposing party is generally your spouse or the other parent of your kids.

Order: An order is a ruling by the court.

Our Family Wizard (OFW): Our Family Wizard is a popular co-parenting app that allows parents to share a common calendar, send messages, and deal with expenses for their kids. Parents can allow others (judges, lawyers, grandparents, care providers, therapists, child representatives) to SEE the messages and calendar.  Many judges require warring parents to use Our Family Wizard, or a similar co-parenting app, to communicate about their kids.

P


Palimony: Palimony is like alimony but it applies to people who were living together without being legally married. It is the support that one person pays to his/her partner when the couple splits. In California it is known as a “Marvin Action” and it is very difficult to win.

Parenting Agreement: A Parenting Agreement is a Parenting Plan that both parents voluntarily signed.

Parenting Coordinator: A parenting coordinator is a specially appointed divorce professional who makes decisions about the children in high conflict divorce cases when their parents can’t agree. Parenting coordinators are not judges. Parents who disagree with a parenting coordinator’s decision may present their disagreement to the judge. But until the judge can hear their dispute, the parenting coordinator’s decision will stand. Parenting coordinators are not free.

Parenting Plan: A Parenting Plan is a legal document that defines each parents’ rights and responsibilities regarding their children. A good Parenting Plan will contain a Parenting Schedule. That will determine when each parent gets to spend time with their kids. The Parenting Plan will also cover how the parents will handle various other parenting issues. Parenting plans can be fairly general or super specific, depending upon whether the parents get along. Parenting Plans are generally court orders.  Parties can only modify them by mutual agreement, or by going back to court.

Paternity Test: This is a scientific test using DNA to prove the identity of a child’s biological father. It can be a blood test or saliva test.

Perjury: Perjury is lying while under oath. It is felony and if convicted in California, one may face jail time of up to 4 years and/or fines.

Petition: A Petition is a written court document that asks the court to do something. It’s similar to a Complaint.  It is often (but not always) the first document filed in a case.

Petition for Dissolution of Marriage: The Petition for Dissolution of Marriage is the document that starts the process of divorce in court.  It lays out the basic facts that will give the court the power to grant the divorce.

Petition to Show Cause: This is a Petition that asks the Court to enforce one of its Court Orders or a Court Judgment. It asks the court to force someone to do what the original Court Order said they were supposed to do. A show cause hearing is scheduled when one spouse (or a parent) involved in a family law or domestic relations case, files legal paperwork asking the court for some specific relief. These hearings can relate to many types of family court orders, including the enforcement of custody and visitation, property, and alimony orders.

Petitioner: The Petitioner is the person who files a case or brings a Petition before the Court. In a divorce, the Petitioner is the person who starts the divorce.

P.I.T.I.A. Principal, interest, taxes, insurance and Homeowners’ Dues. The complete monthly cost associated with financing a property.

Points: Prepaid interest assessed at closing by the lender. Each point is equal to 1 percent of the loan amount (e.g. two points on a $100,000 mortgage would cost $2,000). This is often times broken into origination fee and discount points.

Post-Trial Motions: A post-trial motion is any motion a party makes in a case after trial.

Postnuptial agreement: A postnuptial agreement is similar to a prenuptial agreement, except that a couple signs it after they’re married. Postnuptial agreements must comply with very specific rules in order to be valid. If you think you want one, you NEED to talk to an attorney.

Power of Attorney: An authority by which one person enables another to act on his or her behalf. Power of attorney can be limited to specific areas or be general in some cases.

Pre-Approval: The Buyer has actually begun the application process and an underwriter has approved their income, funds and credit. Beware of any conditions on the approval.

Precedent: Precedent refers to higher court decisions that determine the law in a particular case. Every U.S. court must follow the binding decisions of the courts above it. What lawyers spend so much time arguing about is whether a particular higher court decision applies in their case or not.

Prenuptial Agreement/Marriage Contract/Pre-nup: A prenuptial agreement is a written agreement that a couple enters into before marriage that governs their rights and responsibilities when their marriage ends. Pre-nups can govern how a couple will divide their assets and liabilities when their marriage ends. Prenuptial agreements can also regulate spousal support. 

Pre-Qualified: Buyer has discussed their financial situation with a loan expert. No attempt has been made to verify the validity of any of the borrowers information. PRE-Qualification is only an indication of how much a buyer should qualify.

Pretrial Conference (Pretrial): An informal meeting between judge and attorneys to try to decide one or more issues prior to going through a formal hearing. The judge often provides settlement recommendations to the lawyers in a pretrial conference. The parties to the case can either accept the judge’s recommendations and settle their case or reject them and go to trial. The judge’s recommendations are not binding unless accepted.

Pre-Trial Motions: A pretrial motion is any motion either party makes at any time before trial. 

Private Mortgage Insurance (PMI): This insurance protects the lender for the difference between 80% of the lower of the purchase price or the appraisal value and the overall percentage of the loan (LTV).

Privilege: Privileged information in a legal context refers to certain information that isn’t subject to discovery or disclosure. Lawyers can’t ask questions about privileged information of a witness who is testifying. Privileges apply only in very specific contexts. For example, communication between a client and his/her attorney, communication made to clergy, and communication between a patient and his/her psychiatrist/therapist are all privileged communications.

In Pro Per: The term pro per is Latin for one’s self.  In Pro Per, or more specifically,  In Propria Persona, appears after the heading “Attorney For:” In the context of litigation, going pro per means representing yourself in your divorce without a lawyer.

Pro Per Divorce (In Propria Persona): A pro per divorce is also known as a DIY divorce. When one or both parties choose not to hire a lawyer to represent them they are conducting a Pro Per Divorce. 

Q


Qualified Domestic Relations Order (QDRO): A Qualified Domestic Relations Order is a specialized court order entered in a divorce case that allows a retirement plan administrator to divide the funds that one spouse holds in a retirement fund with his/her spouse in accordance with the terms of the Judgment for Dissolution of Marriage. A QDRO allows divorcing parties to transfer retirement benefits from one spouse’s retirement plan to another spouse’s retirement plan without causing an immediate tax consequence or penalty.

Quid Pro Quo: This a Latin term meaning, to give one valuable thing for another.

Quit Claim: In the broadest sense to quit claim means to release or relinquish a legal claim or right to something. In the context of family law quit claim usually refers to a Quit Claim Deed. That is a document one spouse signs that releases all of their rights in a particular property.

R


Rebuttal: When one party makes a motion or states an argument, the opposing party almost always gets a chance to reply or respond. The original party may sometimes also get a chance to refute or rebut what the responding party said.

Reconciliation: Divorcing parties reconcile when they get back together and call off their divorce.  They may sign a formal reconciliation agreement, which is enforceable by the court. Or, they may just dismiss their divorce case.

Reconsideration: To reconsider means to consider something again. A Motion for Reconsideration asks the judge or magistrate to reconsider his/her ruling either based on new facts or because the judge applied the law incorrectly the first time. Strict deadlines and very specific court rules apply to Motions for Reconsideration. You can’t just file a Motion for Reconsideration because you disagree with the judge’s original ruling.

Relocation: Relocation refers to the situation when one divorced or custodial parent wants to move with his/her children a certain distance away from the children’s other parent. In California, the rules regarding relocation can apply if a parent moves outside of the state, out of the county or certain number of miles away with the kids.  

Request for Production: A Request for Production is a formal written request asking one party to produce specific documents. It is part of the discovery process. Requests for Production in family law cases often include requests for financial records or documents that may be useful as evidence at trial.

Residency Requirement: A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of California for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition. 

Respondent (Defendant): The party defending against a petition or complaint. The Respondent is the person who did NOT initially file for divorce.

Restraining Order: A Restraining Order is a specific Court Order that prohibits one party from engaging in certain behavior or activities. In family law, courts often issue Restraining Orders to protect one party against domestic violence or to protect marital assets. For example, a court can issue a Restraining Order that prohibits one spouse from physically abusing or stalking the other spouse. It can also issue a Restraining Order to prevent one spouse from draining bank accounts or kidnapping the kids. In some jurisdictions, violating a Domestic Restraining Order is a criminal offense.

Retainer: A retainer is the money a client pays to his/her lawyer in advance. It’s like a deposit. The lawyer holds the deposit and subtracts his/her fees from it as s/he earns them. A lawyer may also use the retainer to pay experts in the case.

Right of First Refusal (ROFR): The right of first refusal is the obligation of the one parent to allow the other parent to babysit the kids before hiring a babysitter. California require parents to deal with the right of first refusal in their divorce.

Rules of Evidence: The rules of evidence govern what a court will admit as evidence at hearings, trials, and depositions.

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Separate Property: Separate property is property that belongs to only one spouse. This could be premarital property. (NOTE: If you commingled your separate property with marital property, it may lose its separateness!)  Separate property also can be property that one spouse received as a gift. It can be property one spouse got as an inheritance. Or it can be property that was designated as separate property in a valid prenuptial agreement.

Separation Agreement: This is a written agreement that spells out the specifics of a party’s divorce settlement. It is a written contract that divides property, defines spousal and child support, and spells out each party’s rights and responsibilities regarding their children. Not every state uses the term Separation Agreement. Some states, like Illinois, refer to a party’s settlement document in divorce as a Marital Settlement Agreement. Also, whether and under what circumstances a Separation Agreement or a Marital Settlement Agreement will be enforceable depends upon the law of that state.

Separation Date: The separation date in a divorce or legal separation is the date when two spouses separate in the eyes of the law. The separation date varies from state to state. In some states, it is the date when one spouse physically moves out of the marital home. In other states it is the date one spouse files a Petition for Divorce or Legal Separation. Still other states consider the separation date as the date on which one spouse officially tells the other that they intend to file for divorce.

Service: Service is the legal term for delivering court or legal documents to a particular party. State laws and court rules determine how service must be made. In some states, court documents must be personally served on a party. In other states, you can serve someone by mail, certified mail, or other means. To make things more confusing, some legal documents must be personally served, while others may be mailed. Typically, one party to a case can’t serve legal documents on the other party to the case. Only a Sheriff or some other authorized third party can serve the documents on the appropriate party.

Settlement conference: A settlement conference is a meeting where both parties and their lawyers attempt to settle a case. Settlement conferences can be formal or informal. They can be held in court, or outside of court.

Split custody: This is a form of custody where one parent has custody of one or more of their kids and the other parent has custody of the other kids. Courts do not generally favor split custody. Judges usually require special circumstances to exist before they will allow split custody to occur.

Spousal Support: In California, spousal support is the divorce term used for alimony.

Standard of Living: This refers to how a family was living during their marriage. A court may take into account a couple’s standard of living when determining spousal support.

Status Hearing: A status hearing is a court hearing where the parties tell the judge what’s going on in a case. In other words, the parties tell the judge the status of the case. Status hearings can be held even when nothing is going on in a case. Typically, a status hearing does not involve the presentation of evidence or arguments. If you have an attorney, s/he can usually attend a status hearing for you. You may not have to appear in person. (But, definitely ASK your attorney about that!)

Stipulation: A stipulation is an agreement between parties in a divorce or their attorneys about a specific thing. Stipulations usually involve procedural matters. For example, attorneys may stipulate that the signatures on a document are authentic. Doing that saves them from having to prove the signatures are authentic. That, in turn, makes the trial flow more smoothly.

Subpoena: A subpoena is a special court order that either: requires someone to appear in court or at a deposition as a witness; or requires someone to present documents or other evidence either in court or at the issuing lawyer’s office. Subpoenas are generally directed toward those who are not involved in a lawsuit. If you want to get documents from a party to a lawsuit, you serve him/her with a Request for Production.

Summons: A Summons is a written notification to the Defendant/Respondent that a court case has been filed against him or her. In divorce, a Summons notifies a spouse of his/her rights and obligations in responding to the Complaint for Divorce. If a Defendant/Respondent voluntarily files an Appearance in a case, then s/he does not need to be served with a Summons.

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Temporary Order (Interim Order): A temporary order is an order from the court that resolves some issues in a case on a temporary basis. A temporary order typically remains in effect until the court enters a final order, or until it enters a new temporary order. In family law cases, temporary orders may resolve issues involving the use of property, paying of bills, paying attorney’s fees, paying temporary child or spousal support while a case is pending.

Temporary Support: Temporary support may refer to either child support or spousal support paid while a divorce is pending.

Testimony: When witnesses in a court hearing or deposition answer questions under oath, they are giving testimony.

Transcripts: These are the written records of court proceedings or depositions. In the past, court reporters took shorthand notes of hearings and trials. If necessary, the court reporters would then transcribe their notes into a typewritten document – i.e. a transcript. Some courts now have replaced court reporters with electronic recording devices. 

Trial: A trial is the final hearing in a case. During a trial, the judge will hear all contested issues in the case. Both parties will provide the judge with evidence and witness testimony to support their positions.  The judge will hear all of the testimony and review all of the evidence and will ultimately issue a court opinion. That opinion will become the final Judgment of Divorce in that case. (NOTE: There are no jury trials in divorce. Either two spouses decide their issues themselves, or a judge decides the issues for them.)

U


Unconscionable: This is a legal divorce term that means beyond the bounds of reason.

Uncontested Divorce: An uncontested divorce is one in which neither spouse is fighting with the other spouse about anything. In an uncontested divorce, the parties agree to the divorce and agree about all issues involving their children, money, and property.

Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA): This is a California law that is designed to promote uniform jurisdiction and enforcement of interstate child custody proceedings. This law also tries to prevent parental kidnapping. Among other things, this law determines which law applies when children move between states. The UCCJEA has been enacted by approximately 25 states and the District of Columbia.

V


Valuation: A valuation is an expert assessment of the value of certain property. For example, an accountant or business valuator may evaluate a business and provide a report to the parties in a divorce case regarding the value of that business. An appropriate expert may also provide valuations for other expensive, hard-to-value items like artwork and collectibles.

Venue: Venue refers to the specific county within a state in which a case should be heard.

W


Waiver: A waiver is a written legal document that gives up a right, claim, or privilege. For example, if you waive your right to spousal support, you can never ask your spouse to support you. Ever. Period.

Withdrawal: To withdraw means to leave. In the context of a family law case, a withdrawal refers to the formal end of an attorney’s representation of one party in the divorce.

Witness: A witness is a person who may have information regarding the issues in a court case. Witnesses may be subpoenaed to give testimony in court or at a deposition.

Witness List: A witness list is a list of potential witnesses that a party may call to testify at a trial or court hearing.

Writ: A writ is a specific kind of legal order directing someone to do (or not do) something. For example, a writ of garnishment may direct an employer to garnish a person’s wages to fulfill a financial obligation (like child support). A writ of habeas corpus may direct law enforcement officers to retrieve a child who is being held in violation of a court order.

ANY MORE OPEN QUESTIONS?