Capias: An arrest warrant ordering the sheriff or another police officer to take a person into custody because he or she refuses to show up to court.
Capitalization: The conversation of income into value.
Caption: The heading of a motion or other document illustrating the names of the plaintiff and the defendant, the name of the court, the court term and the identification number.
Certificate of Mailing: A written statement proving to the court that a copy of a certain document was mailed to the person for whom it was intended.
Certificate of Service: A written statement proving to the court and completed by a process server that a copy of a document was served to the person for whom it was intended.
Certified Copy: A copy of the document contained in the court file. It includes a stamped seal confirming that the copy is indeed a true and correct copy of the document contained in the court file.
Change of Venue: A change of judges when one side one side feels the present judge is prejudice.
Chart Child Support Method: The method used to establish a basis for determining child support. It takes into consideration the gross income of both parents, less special adjustments such as support for children of a previous marriage, and a set amount of money to be allotted monthly for the child. The court has the authority to digress from the said formula as it decides is necessary in each case.
Chattel: Personal property.
Child Custody: A court’s determination of which parent or relative should have physical and/or legal control and responsibility for a minor child(ren). However, child custody also can come up if a child, relative, close friend or state agency questions whether one or both parents is unfit, absent, dead, in prison, or dangerous to the child’s well-being. In such cases custody can be awarded to a grandparent or other relative, a foster parent, or an orphanage or other organization or institution. While a divorce is pending the court may grant temporary custody to one of the parents, require conferences or investigation (in some states, if the parents cannot agree, custody is automatically referred to a mediator, commissioner, or social worker) before making a final ruling. There is a difference between physical custody which designates where the child will actually live and legal custody which gives the custodial parent(s) the right to make decisions for the child’s welfare. If the parents agree, the court can award joint custody, physical and/or legal. Joint legal custody is becoming increasingly common. The basic consideration on custody matters is supposed to be the best interests of the child or children. In most cases the non-custodial parent is given visitation rights, which may include weekends, parts of vacations and other occasions. The court can always change custody if circumstances warrant.
Child Support Guidelines: A series of mathematical formulas that help derive the proper amount of child support that should be awarded.
Child Support Worksheet: A court form devised to calculate the child support guidelines.
Child Support: A legal responsibility that both parents have to provide adequate financial support for the children until each reaches the age of emancipation (In NC, this is at the age of 18). The goal is to keep the children in the same quality of lifestyle that they would have experienced had the divorce not taken place.
Citation: An order from a court requiring a court appearance.
Civil Court: The court which presides over non-criminal cases.
Claim: The charge by one spouse against another.
Clear Title: Transferring ownership of an asset without any encumbrances, obstructions or burdens that present any reasonable question of law or fact.
Clerk: The person responsible for keeping court records and procedures in an orderly fashion.
COBRA: Federal Legislation which guarantees that all individuals who are covered by medical insurance have the right to continue coverage for a monthly fee if employment changes or marital status changes.
Cohabitation: Two people living together. This can be grounds for terminating support in some states and provinces. Often time a period of cohabitation is written.
COLA: The cost of living adjustment (a COLA offset).
Collusion: An agreement between two or more persons that one of the parties brings false charges against the other. In a divorce case, the husband and wife may agree to use adultery as a ground in order to obtain a divorce more quickly, knowing full well that adultery was not committed. Collusion is illegal.
Common Law Property Distribution: The method of dividing property in a divorce according to who holds the title to the property.
Common Law Marriage: A common law marriage comes about when a man and woman who are free to marry agree to live together as husband and wife without the formal ceremony. To be common law married, both spouses must have intended to be husband and wife. Maryland does not recognize common law marriages.
Community Property: Property and profits received by a husband and wife during the marriage, with the exception of inheritances, specific gifts to one of the spouses, and property and profits clearly traceable to property owned before marriage, all of which is separate property. Community property is a concept which began in Spain to protect rich women from losing everything to profligate husbands, and is only officially recognized in some states which were once under or influenced by Spanish or Mexican control, including California, Arizona, New Mexico, Texas, Nevada, Idaho, Washington and Louisiana. Community property recognizes the equal contribution of both parties to the marriage even though one or the other may earn more income through employment. By agreement or action the married couple can turn (transmute) separate property into community property, including by commingling community and separate funds in one account. Community property is recognized based on fact or agreement of the parties, rather than holding of title. The state courts have wavered on what constitutes proof of community property, including the issue of whether joint tenancy is evidence of community property or not. Many states have adopted statutes which provide for equal distribution which parallel the community property system. Upon the death of one spouse all the community property goes to the other except in Texas surviving children get one half and in obvious sexual discrimination Nevada and New Mexico allow the husband to will a half to someone other than his wife.
Comparables: A shortened term for competitive property sales, rentals, or operating expenses used for comparison in the valuation process.
Complaint: A pretrial document filed in a court by one party against another that states a grievance, called a “cause of action.”
Conciliation: The attempt to establish an agreement between the divorcing spouses concerning the children and any other areas in which they do not agree.
Condonation: The act of forgiving one’s spouse who has committed an act of wrongdoing that would constitute a ground for divorce. Condonation generally is proven by living and cohabiting with the spouse after learning that the wrongdoing was committed. It often is used as a defense to a divorce.
Conflict of Interest: When any professional is not capable of performing services due to previous relationships or present relationships and/or a situation where confidentiality can be broken.
Constable: A person who is given the legal right to serve process.
Constructive Abandonment: The refusal of one spouse to engage in sexual relations with the other spouse. In some states and provinces this is considered grounds for divorce if lasting for a certain length of time.
Constructive Service of Process: When the service of process is delivered through other methods such as a newspaper due to the unknown whereabouts of the spouse.
Contempt of Court: Obstructing the authority of the court by intentionally violating a court order.
Contempt: Failure to follow a court order. One side can request that the court determine that the other side is in contempt and punish him or her.
Contested Divorce: A divorce where at least one issue has not been settled before court. The court must decide the issue or issues.
Contingent Fee: An agreement which specifies that the attorney does not get paid unless the client wins the case. This type of arrangement is generally not allowed in divorce and custody cases.
Continue: The act of postponing a scheduled court hearing to a later time.
Convey: To transfer property to someone by selling it or by other means.
Co-Respondent: The individual who is targeted as the partner in an adulterous relationship.
Corroboration: Additional evidence (sometimes in the form of a witness) of a point beyond what is offered by the person asserting the point.
Corroborative Witness: A person who testifies for you and backs up your story. If you are asking the court to grant a divorce, you must bring to the hearing a witness who can corroborate your grounds for divorce.
Cost Approach: A set of procedures in which an appraiser derives a value indication by estimating the current cost to reproduce or replace the existing structure, deducting for all accrued depreciation in the property, and adding the estimated land value.
Count: A statement of facts that clearly defines the complaint.
Counter-Claim: A pleading filed by the defendant (respondent) against the plaintiff (petitioner).
Court Clerk: The administrative personnel of the court who handles the filings for court procedures and answers questions concerning them.
Court Order: A written document ordering a person to do something. It is issued by a court and signed by a judge.
Court Term and Number: An identifying date and number that appears on the captions of papers filed in court. The assignment is made by the clerk.
Courts of Common Pleas: The state trial-level courts that have the authority to grant divorce.
Coverture: The period of time a women is married.
Creditor: A person to whom money is owed.
Cross Reference Case: A separate case involving one parent in common, but in which there are other children from a different mother or father. Either parent can have cross reference cases.
Cross Examination: The questioning of a witness of the opposing party in court or at a deposition. The purpose is to test the credibility or pursue advantageous avenues.
Cross Petition: A statement of the reasons for the breakdown of the marriage issued by the respondent. It will be different than that of the petitioner.
Curable Depreciation: Items of physical deterioration and functional obsolescence that is economically feasible to cure.
Custodial Parent: The parent a child normally lives with, and the one who makes legal decisions concerning the child. There are several different types of custody arrangements. (See child custody section in your state).
Custody- Sole and Joint: Refers to the legal arrangements for which a child will live with and how decisions about the child will be made. Custody has two parts: legal and physical. Legal custody is the decision-making part: physical custody refers to where the child lives on a regular basis. Generally, the parent the child does not live with will be allowed to have regular visits with the child. Parents can make any custodial arrangement that is in the best interest of their children. The standard for custody is “best interest of the child”. Other factors that are taken into consideration may be:
- The age and health of each parent.
- The age and health of the child.
- The child’s educational needs, higher education not withstanding.
- The desire on the part of each parent to have sole or joint custody.
- The employment stability and potential of each parent.
- The financial resources of each parent and that of the child’s.
- The impact on each parent maintaining two households.
- The income and earning capabilities of each parent.
- The possibility of the child obtaining employment.
- The tax liabilities of each parent.
- The willingness both parents demonstrate to allow visitation.