Useful Terms for Achieving Equality in Marriage and Divorce
Words related to equality in marriage and divorce fall into two categories: common terms like “marriage” and legal terms like pro per or pro se, which means to represent yourself in court. We have pulled together a short-list of words essential to know if you are seeking equality in marriage or divorce. For definitions of other terms specific to your situation, we suggest you visit the Nolo comprehensive legal encyclopedia.
ALTERNATIVE DISPUTE RESOLUTION (ADR) includes negotiation, conciliation, mediation and arbitration, all ways which may avoid a courtroom resolution. InMEDIATION, a neutral third party helps the couple find a mutually satisfactory solution but has no power to impose it. ARBITRATION, using procedures more formal than mediation but less formal than a trial, comes in many forms, including BINDING ARBITRATION in which the arbitrator can enforce the agreement.
COMMUNITY PROPERTY is a system in which marital assets and debts are generally divided equally upon divorce. Only Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington and Wisconsin have community property laws. All the other states have EQUITABLE DISTRIBUTION, in which marital assets are divided “equitably” or “fairly” in divorce, but the courts decide what’s equitable and fair unless the couple has signed a martial contract. Often the courts award the higher wage earner a greater portion. In community property states, couples may have SEPARATE PROPERTY, which is defined as property owned and controlled entirely by one of the partners and may include assets acquired before marriage.
COHABITATION is living together as or as if husband and wife. In recent years, this concept has expanded to include any two partners who have integrated their residence, property and daily lives. COHABITATION AGREEMENT, is a private contract between two cohabitants, which typically tries to establish contractually for the parties the rights and obligations that marrieg people obtain by custom, statue, and agreement.
DEFERRED COMPENSATION PACKAGE covers all retirement assets or postponed income earned during the marriage. Important to consider in a 50-50 division of marital assets even though they may not be available until after retirement.
DISCOVERY is a formal investigation to collect information and documents before a trial. Interviews called DEPOSITIONS are conducted under oath and recorded by a court reporter. The DEPOSITION TRANSCRIPT may be presented at the trial if the witness is unavailable
DIVORCE is the legal termination of marriage. Also called DISSOLUTION in some states. Divorce laws differ from state to state. Until the 1970s, most states requiredGROUNDS FOR DIVORCE such as adultery, desertion or other marital misconduct. Such FAULT DIVORCES are still allowed in 35 states, but today NO-FAULT DIVORCESare granted for less specific reasons such as incompatibility or irreconcilable differences.
DIVORCE AGREEMENT is a document, signed by both divorcing partners, outlining division of property, alimony, child custody, and child support. Also called a MARITAL SETTLEMENT AGREEMENT, MARITAL TERMINATION AGREEMENT or SETTLEMENT AGREEMENT. It becomes part of the DIVORCE DECREE, the final decision in a divorce action.
INVENTORY AND APPRAISEMENT is the listing and valuation of marital property before division in a divorce. It’s important to remember that you can’t appraise anything you don’t know about. Anyone considering a divorce should make sure all the assets are on the table. Everyone at every stage of marriage should know what the marital assets and debts are.
MARITAL PROPERTY is most of the property accumulated by spouses during a marriage. It is called community property in some states. What is considered marital property varies from state to state.
MARRIAGE is the legal union of two people with rights and responsibilities concerning property and support defined by law. Marriage laws, like laws governing divorces or annulments, vary from state to state. A MARRIAGE LICENSE, obtained for a fee usually from the country clerk’s office, is required before a marriage can take place. AMARRIAGE CERTIFICATE, usually signed by the couple and witnesses at the wedding, is proof of marriage, and usually issued a few weeks after the married couple file for the certificate in a county office.
PREMARTIAL AGREEMENT is an agreement or contract made by a couple before marriage that defines certain aspects of their relationship, usually the management and ownership of property, and sometimes whether alimony will be paid if the couple later divorces. Courts usually honor premarital agreements unless one person shows that the agreement was likely to encourage divorce, was written with divorce in mind or was entered into unfairly or under pressure. A premarital agreement may also be known as a “prenuptial agreement” or “pre-nup.” A similar agreement made after the couple is wed is called a POST-MARITAL AGREEMENT or “postnup”.
REHABILITATIVE ALIMONY is payment determined by the court or the settlement agreement to help a former spouse become financially self-sufficient. In cases of marriages over 10 years or when a spouse physically unable to work, ALIMONY is considered “spousal support” or “maintenance” without the expectation that the former spouse will become self-supporting.
SEPARATION is simply when a married couple lives apart, but separations may also be a TRIAL SEPARATION during which the couple decides on the future of their marriage or a PERMENANT SEPARATION during which any assets acquired by either marital partner is considered separate property. A LEGAL SEPARATION involving the court rules on a division of property, maintenance (alimony) or child support may be obtained if the couple must remain married for religious reasons or for one partner to receive medical benefits.