New York Divorce Lawyer J Douglas Barics Matrimonial Attorney

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J. Douglas Barics

New York Divorce and Family Law

NY Divorce Attorney J Douglas Barics Family Law Lawyer

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Glossary of New York Divorce, Matrimonial & Family Law Terms


Provided by The Law Office of J. Douglas Barics
www.jdbar.com
Copyright 2009 - 2016 - All RIghts Reserved



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Abandonment (Grounds)

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Abandonment for one year or more is grounds for divorce under DRL 170(2). It is also grounds for an action for a separation under DRL 200(2). In order to prove abandonment, four elements must be proven: (1) voluntary separation, (2) no intent to resume living together, (3) lack of consent to the abandonment, and (4) no justification. Abandonment can be actual or constructive. See Constructive Abandonment.



Acknowledgment

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An acknowledged signature is a signature taken before a notary public. Unlike a normal jurat, an acknowledgment confirms the identity of the individual signing the instrument. The precise language of the acknowledgment must be used, which is set by statute. There is an acknowledgment for instruments signed within New York State and a different one for instruments signed outside of New York. An improperly acknowledged domestic agreement will render it void and without effect. See Matisoff v. Dobi.



Action

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An action is a case filed in Supreme, District, or Civil Court. The plaintiff must allege one or more causes of action against a defendant or multiple defendants. An action spells out the relief sought and the basis for the relief by way of a complaint for its pleading.



Adultery (Grounds)

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Adultery is grounds for divorce under DRL 170(4). It is also grounds for a judicial separation under DRL 200(4). Adultery is defined as a married individual having sexual intercourse with someone other than their spouse. DRL 171 provides four affirmative defenses to adultery, which if proven, will prevent the divorce from being granted even if adultery is proven. The affirmative defenses are consent or causing the adultery, forgiveness, the passage of five or more years, and committing adultery. A spouse is prohibited from testifying on the grounds of adultery under CPLR 4502(a).



Affidavit

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An affidavit is a written statement made under oath. The signature is must be taken before a notary public. Affidavits may not generally be used as evidence during a trial. Affidavits are more commonly used in support of motions.



Affirm

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To affirm is one possible result of an appeal, where the appellate court confirms the lower court's judgment or order.



Affirmation

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An affirmation is a sworn statement made under the penalties of perjury. The signature does not need to be notarized. However, only a certain specified classes of individuals may make an affirmation. Lawyers, doctors and dentists are permitted to make affirmations. In addition, an individual making an affirmation cannot be a party to the action. An affirmation may be used in lieu of an affidavit.



Affirmation in Opposition

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An affirmation in opposition is an affirmation submitted to oppose a motion. It is often accompanied by an affidavit by the party, along with any exhibits submitted on opposition to the motion. If there is no affirmation, the affidavit itself can be called an affidavit in opposition.



Affirmative Defense

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An affirmative defense is a set of facts raised in the pleadings, which if proven, will defeat a cause of action even if the cause of action is proven at trial. A common example is the statute of limitations, which must be raised as an affirmative defense or it is lost. If the defendant can show the cause of action is barred by the statute of limitations the case will be dismissed, even if the claim is otherwise meritorious The defendant must raise any affirmative defenses in the answer. The plaintiff may raise any affirmative defenses to a counter claim in the reply.



Aggrieved Party

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An aggrieved party is the party who was harmed in some way by a court ruling. Only an aggrieved party has standing to appeal.



Alimony

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Alimony is a payment of money by a spouse or former spouse, to his or her spouse, by written agreement or court order. Alimony is now called maintenance for all divorce matters commenced in New York after July 19, 1980. For matters commenced prior to that date, the old term of alimony still applies. The IRS uses the term alimony, and all references to alimony by the IRS apply to maintenance. Traditionally, only wives could receive alimony. These types of gender based statutes were struck down as unconstitutional in the 1979 United States Supreme Court case of Orr v. Orr.



Amicus Curiae

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Literally means "friend of the court." Normally used in the context of a non party with a strong interest to file a brief for the court. Amicus Curiae briefs are normally found when there is a public interest with the issue before the court.



Annulment

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An annulment is a finding by the court that the marriage never existed. All other ancillary relief is permitted in an action for an annulment, including maintenance and equitable distribution.



Answer

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An answer is the formal written pleading filed by the defendant in an action. Each allegation in the complaint must be admitted or denied in the answer. The defendant may also raise any affirmative defenses in the answer. Failure to raise an affirmative defense in the pleadings will result in a waiver of that defense. The answer may also include a counter claim against the plaintiff, if appropriate.



Appeal

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An appeal is a request to have a superior court review the decision of an inferior court. In New York, the lowest level trial courts include Supreme Court, Family Court, Surrogate's Court. There are additional trial level courts as well. Appeals from these three courts are normally heard in the appropriate Appellate Division. Appeals from the Appellate Division are heard by the Court of Appeals.


No new evidence or information can be presented on an appeal. The sole function of an appeal is to review the lower court's determination on a disputed fact or rule of law.



Appeal as of Right

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An appeal as of right is one that does not need permission to be taken. The party has the right to file a notice of appeal.



Appeal by Permission

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An appeal by permission is one which requires a court order granting permission to appeal, issued at the court's discretion. A notice of appeal may not be used, but instead a motion seeking leave to appeal is required.



Appealable Paper

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A paper from which an appeal may be taken.



Appearance

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Appearance or appearing is the act of voluntarily submitting to the jurisdiction of a court. Appearing is accomplished by the filing of a notice of appearance by a lawyer.



Appellate Division

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The Appellate Division is New York's intermediate level appeals court. It is broken down to four departments, based on geography.



Appendix (appeal)

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The appendix method is one of the three methods which the trial record is presented to the appellate court in an appeal. The appendix method uses only a portion of the full record.



Attorney (at law)

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An attorney at law is someone who is authorized to practice law in a given jurisdiction.



Attorney (in fact)

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An attorney in fact is an individual who is appointed as an agent of another, to act in that person's name. The authority to act as an attorney in fact is granted by a power of attorney.



Attorney for the Child

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An attorney for the child is a lawyer assigned to represent the interests of a child or multiple children in a court proceeding for custody, visitation, child neglect or abuse, termination of parental rights, PINS or juvenile delinquency proceedings. An attorney the child was formerly known as a law guardian.



Automatic Restraining Orders

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When a divorce action is commenced, both parties are automatically restrained from transferring assets under DRL 236 B(2).



Bankruptcy

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Bankruptcy is the process where an individual or a business declares himself to be unable to meet his financial obligations via a proceeding in federal court. Depending on the type of bankruptcy filed, the debts may be wiped clean, subject to certain restrictions, or the repayment terms on existing debts may be restructured. Bankruptcy laws were amended in 2005, significantly changing how domestic relations debts are treated in a bankruptcy proceeding, and how a bankruptcy filing affects a matrimonial action. Long Island bankruptcy attorney Craig D. Robins has an excellent summary of matrimonial fundamentals under the 2005 bankruptcy law.


    Chapter 7 Bankruptcy

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    Under a Chapter 7 bankruptcy, the debtor is permitted to keep certain exempt property. The remaining assets are liquidated and the proceeds used to pay off the remaining obligations. Remaining debts are discharged. Child support, spousal support and property awards made pursuant to a divorce are not discharged.



    Chapter 13 Bankruptcy

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    Under a Chapter 13 bankruptcy, the debtor's repayment obligations are restructured under a plan approved by the bankruptcy court. Creditors cannot seek repayment outside of what the plan provides. The debtor is restricted in obtaining new credit.


Bench Trial

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A bench trial is a trial without a jury; the judge decides all issues. All matrimonial trials are bench trials, except for grounds.



Brief (Appeal)

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A brief is the written legal argument used in an appeal stating why the lower court's decision was wrong and how it should be corrected. The brief must reference the record and identify where the lower court made errors.



Burden of Proof

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The burden of proof is the duty that a party has to show an allegation is true. The burden of proof also refers to the concept of overcoming a presumption.



Capital Gain

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The gain or profit realized when a capital good is sold.



Capital Gain's Tax

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The tax imposed on a capital gain.



Certificate of Dissolution

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A certificate of dissolution is a form used to process a divorce. It contains statistical information about the parties. This form can be viewed here: Certificate of Dissolution.



Child Support

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Child support is money paid from one parent to the other for the support of their children. Child support is set by each state. For New York, child support is a percentage of the non custodial parent's income. For one child it is 17%, for two children, 25%, three children, 29%, four children, 31% and five or more children, 35%. For more information, see the three part article, "Child Support in New York"



Circumstantial Evidence

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Circumstantial evidence is indirect evidence from which a material fact may be inferred.



COBRA

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Consolidated Omnibus Budget Reconciliation Act (Cobra) is a federal law which gives workers and their families the option to continue health benefits upon termination of employment or upon a divorce. The cost of the continued coverage is paid by the employee or family member.



Common Law Marriage

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A common law marriage is a marriage based upon a mutual agreement of intent to marry without compliance with any legal formalities. New York has abolished common law marriages, but will recognize a common law marriage entered into in another state under the Full Faith and Credit Clause of the United States Constitution.



Community Property

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Community property gives each spouse a vested right in marital property independent of a dissolution of a marriage. Thus, a spouse may assert their right to marital property during the marriage, during a divorce , or following the dissolution of marriage. A common misconception is that community property gives each spouse an equal share of marital property when the marriage is dissolved. Community property may be divided in any manner. California divides community property equally, while Texas divides community property equitably. Community property also can affect Federal Income Taxes due to the vested right it gives to each spouse See IRS publication 555. The following states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska allows spouses to opt into commun



Complaint

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A complaint is the initial pleading, filed by the plaintiff, which sets forth the specific grounds for the action and a demand for the relief requested.



Compliance Conference

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A compliance conference is a court conference which is set at the time of the preliminary conference following the date discovery is scheduled to be complete. At the compliance conference, the court will determine if discovery has been complete, and if so, certify the case for trial. If discovery has not been completed, the court may, at the judge's discretion, authorize additional time for discovery.



Contempt of Court

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Contempt of court falls into two categories. Criminal contempt is an act which is done to obstruct justice or to show disrespect to the court. Civil contempt is a willful disregard of a court mandate which was issued on behalf of a party.



Conversion Divorce

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A conversion divorce is a divorce filed under the grounds of living apart for one year or more for either a judicial separation (DRL 170(5)) or a written separation agreement (DRL 170(6)) as grounds. The terms of the judgment of separation or the written agreement are converted into the terms of the divorces, as well as being the grounds for the divorce.



Constructive Abandonment

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Constructive abandonment is a finding of abandonment as a grounds for a divorce under DRL 170(2) or a separation under DRL 200(2). A spouse will be found to have constructively abandoned his or her spouse if they ceased having sexual relations without the consent of their spouse, and there is no medical reason for the secession of marital relations. Constructive abandonment was first found in the 1960 Court of Appeals case of Diemer v. Diemer.



Constructive Trust

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A constructive trust is a trust created by a court as an equitable remedy. It is imposed when there is fraud, deceit or duress, or an abuse of a confidence, and will result in a finding that the titled holder of an asset is not the actual owner, but instead holding the asset for the benefit of the wronged individual.



Counsel Fee Award

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An award of counsel fees from one party to another. an award of counsel fees can be made in a matrimonial action under DRL 237 based upon unequal financial resources or DRL 238 for enforcement of matrimonial awards.



Counter Claim

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A claim filed the the defendant against the plaintiff in an existing action. A counter claim is part of the answer.



Court of Appeals

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The Court of Appeals is the highest court in New York.



Cross Examination

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Cross examination is the questioning of a witness by a lawyer other than the one who called the witness to give direct testimony. The purpose of cross examination is to clarify the testimony already given, discredit the testimony, or to generally present the facts in a light less favorable to the party who called the witness.


The testimony of a witness cannot be considered by the court unless that witness can be subject to cross examination.



Cruel and Inhuman Treatment (Grounds)

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Cruel and inhuman treatment is a ground for divorce under DRL 170(1). The conduct must make it unsafe or improper to remain living together as husband and wife. The length of the marriage will determine the standard of what constitutes cruel and inhuman treatment. The longer the marriage, the higher the standard. See Hessen v. Hessen and Brady v. Brady.



CSSA

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CSSA stands for the Child Support Standards Act, and sets forth the formula for determining child support based on a percentage of income. The CSSA is also known as "the guidelines" and is found in Domestic Relations Law 240(1-b) and mirrored in Family Court Act 413(1-b).



Custody

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Custody is the term used to identify which parent has the authority to make decisions involving their child. A parent with sole custody has the sole authority over the non custodial parent, while in joint custody, the decision making authority is shared. For additional information, see the article: Child Custody in New York.



Decision

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A determination made by a court after considering the evidence presented. A decision must usually be reduced to a judgment. A decision may not be appealed until it is reduced to a judgment as it is not considered an appealable paper.



Deed

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A written instrument signed by a grantor, which transfers title or interest of real estate to another individual.


    Bargain & Sale Deed

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    A deed in which the grantor represents they have an interest in the property being transferred. A bargain and sale deed may include covenants against the grantor's acts, or it may exclude them.



    Quitclaim Deed

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    A deed which the grantor makes no representations as to their interest in the property being transferred. Instead, the grantor simply transfers whatever interest they have, if any.


Default

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To default is to omit to do something that must be done. A default judgment is one entered against a defendant who fails to plead an answer, or otherwise fails to defend the action. A trial on the defendant's default is an inquest. The plaintiff must still present a prima facie case in order to obtain a judgment.



Defendant

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The defendant is the individual who is defending the action; the person who denies the claims made by the plaintiff. A defendant may make a legal claim against the plaintiff by filing a counter-claim as part of the answer.



Defined Benefit Plan

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A defined benefit plan is an annuity which provides a specified benefit, usually a monthly payment for life, for each contributor. Accounts are not segregated as they are in a defined contribution plan.



Defined Contribution Plan

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A defined contribution plan gives an individual account for each contributor, with each account holding a specified amount of money. The value of the account is the account balance.



Deposition

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A deposition is part of pre trial discovery. In a deposition, a witness gives sworn testimony before a court reporter. a deposition is conducted outside of court, usually at an attorney's office.



Direct Examination

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Direct examination is the first examination of a witness by the party who called the witness to testify. Testimony from a direct examination may only be considered as evidence if the witness is available to cross examination.



Discovery

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Discovery is the pre trial process where each side in a litigated matter obtains information held by the other side. In a matrimonial action, both sides are required to exchange statements of net worth, W-2s, tax returns and pay stubs. Additional discovery may be obtained through a notice for discovery and inspection (request for documents), interrogatories, (written questions which must be answered) depositions (oral questions which must be answered) and the use of experts. The schedule for discovery is set during the preliminary conference.



Distributive Award

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A distributive award is a payment in cash used to effectuate the equitable distribution of marital property. It is used when dividing a marital asset or assets would be impossible or impractical.



Divorce

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A divorce is a termination of a marriage by a court judgment. A divorce in New York may only be granted if one of the seven grounds under DRL 170 are proven. The grounds for divorce in New York are: cruel and inhuman treatment, abandonment for one year or more, imprisonment for three years or more, adultery, living apart pursuant to a judicial separation for one year or more, and living apart pursuant to a written separation agreement for one year or more, and irretrievable breakdown of the marriage for six months or more. For further information, see the article, "New York Divorce Grounds"



Domestic Violence

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Domestic violence are violent acts taken against family members. For additional information, see the article "Orders of Protection in New York"



Enhanced Earnings

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Enhanced earning capacity is a concept of marital property that was established by the landmark case of O'Brien v O'Brien, which held the ability to earn higher income is an asset which can be distributed in a divorce. This holding was repealed by statute in 2016, which prohibits direct awards. However, contributions to a spouse's ability to earn income may be considered a factor when distributing other assets.



Entry of Order

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The entry of an order is the filing of an order with the clerk's office and having it stamped with the date of filing. Service of the order with notice of this date begins the time from which an appeal of that order may be taken. See also Notice of Entry.



Emancipation

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Emancipation is the process by which a child is deemed to be an adult, thereby relieving both parents of the obligation to pay child support and removing the ability to be awarded custody.



Equitable Distribution

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Equitable distribution gives a spouse a right to marital property only in conjunction with a dissolution of marriage. It is available only as ancillary relief; meaning there is no separate right to equitable distribution outside of an action which seeks to terminate the marriage. (i.e. divorce or annulment) Thus, a non titled spouse has no property rights which can be enforced during a marriage. Nor can any claim be made (except under very limited circumstances) for equitable distribution be made following a divorce; failure to seek equitable distribution during a divorce or annulment will normally constitute a waiver. Equitable distribution is not available as ancillary relief for an action for a judicial separation, as the status of the marriage is not being changed. Equitable distribution in New York is governed by Domestic Relations Law 236 (B)(5). See also distributive award.



Escrow Account

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A bank account in the name of an attorney, who is the escrow agent, which used to hold funds belonging to a third party.



Evidence

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Evidence is proof submitted at trial to prove or disprove a fact.



Exclusive Occupancy of the Marital Residence

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Either party in a matrimonial action may be awarded exclusive occupancy of the marital residence at the court's discretion. Exclusive occupancy is generally reserved for situations where one spouse is awarded sole custody of the children, there is a determination that the best interests of the children are served by remaining in the marital home, and it is impossible or impractical to award title of the house to the custodial parent. For additional information, see the article: Exclusive Occupancy of the Marital Home.



Exhibit

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A piece of tangible evidence produced to the court during a trial, hearing, proceeding, or motion, which is used to support facts.



Ex Parte

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By or for one side only. Normally, both sides to a lawsuit must be present when either side communicates with the court. When only one side is present, it is called "ex parte" While most ex parte applications are prohibited, they will be permitted if the absent side had sufficient notice of the proceeding. Notice may also be waived under some circumstances, allowing one side to obtain a short term temporary order, ex parte. Such an order will normally be reviewed again once both sides have an opportunity to be heard.



Expert Witness

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An expert witness is a witness who is qualified to give an opinion on the subject for which they were qualified as an expert. The process of qualifying a witness as an expert usually occurs through a voir dire.



Family Court

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Family Court in New York is a court of limited jurisdiction. Family Court is created by statute, the Family Court Act, and as such, its authority is limited to what was specifically conferred by the Family Court Act. Family Court has concurrent jurisdiction with Supreme Court for all matters granted to it, but in practice, will be the exclusive court where some matters are heard. Family Court is authorized to hear juvenile delinquency proceedings, spousal support, child support matters, paternity, custody, visitation, family offense proceedings, reconciliation proceedings, child neglect & abuse proceedings, adoptions, and termination of parental rights. The authority to grant a divorce was specifically omitted from the powers conferred to Family Court, and is retained exclusively by Supreme Court.


All matters brought in Family Court are considered special proceedings, and as such, different terminology is used. See the article "Supreme Court v. Family Court" for more information.



Family Offense

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See Domestic Violence



Fee Arbitration

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Fee arbitration is a method of resolving attorney-client fee disputes. A lawyer may not sue their client over fees unless the lawyer has given the client the opportunity to use arbitration. Additional information on fee arbitration can be found on the New York State Unified Court System section on Fee Arbitration.



Fees

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A lawyer's fee is the compensation an attorney receives for legal services. There are various ways in which legal fees can be set.


    Contingency Fee

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    A contingency fee is a legal fee based on a percentage of an award. Contingency fees based on an award of marital property, spousal support, child support, or upon obtaining a divorce are prohibited.



    Flat Fee

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    A flat fee is a fixed fee paid to a lawyer for performing a specific legal representation. A flat fee may be set for an entire matter, or specified elements within a legal matter.



    Hourly fee

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    An hourly fee is a legal fee which is based upon the time spent during the course of a lawyer's representation.



    Minimum Fee

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    A minimum fee is the minimum legal fee a matter will be, provided the matter is concluded, regardless of the time spent. Minimum fees are permitted in New York. Contrast with non refundable fees, which are prohibited.



    Non Refundable Fee

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    A non refundable fee, also known as a non refundable retainer, is a fee paid to a lawyer which is not refundable under any circumstances. Non refundable fees are prohibited in New York.


Fiduciary

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A fiduciary is a person or entity which manages assets or money for someone else and who must exercise a standard of care set by law.



Final Order

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Findings of Fact & Conclusions of Law

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A findings of fact and conclusion of law is a judicial determination of the facts and law necessary to support a judgment or final order. For uncontested matters, the findings will be the minimum facts necessary for the court to grant the relief requested. For contested matters, the findings will be the court's determination of disputed facts or points of law.



Foreclosure

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Foreclosure is the process when a property subject to a mortgage is sold on default.



Fraud

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Fraud is a deliberate deception or misrepresentation to obtain personal gain by inducing someone to rely on the deception or misrepresentation. Fraud is also one ground for an annulment.


Full Record (Appeal)

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The full records is one of the three ways to present the trial court record to the appeals court during an appeal. The full record uses every document and item of evidence considered by the lower court. When using the full record, multiple copies must be filed with the appellate court. See also appendix and original record.



Garnish

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To garnish is to attach wages to satisfy a court order, where a portion of the wages are paid directly to the creditor.



Goodwill

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Goodwill is the value of an individual's contribution to a business; it is the value fo a business less the value of the tangible assets.



Grounds

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Grounds are the circumstances which must be proven to obtain a divorce, annulment or separation. Fault based grounds must show misconduct by the defendant spouse. A spouse cannot allege they were at fault for grounds. For additional information, see the articles: New York Divorce Grounds, Grounds for a New York Annulment, and Separation Grounds in New York.



Guardian-ad-Litem

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A guardian ad litem is a guardian appointed to act on behalf of someone who cannot act on their own behalf, either through mental incompetence or due to being under the age of emancipation.



Hague Convention

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In domestic relations matters, the Hague Convention refers to a treated formally known as the Hague Convention on the Civil Aspects of Child Abduction. The Hague Convention provides for a procedure for the expedited return of abducted children which all countries that have ratified the treaty are bound to follow. A list of countries which have ratified the Hague Convention is available at the US Department of State's web site.



Hear and Determine

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When a trial is referred to referee or a judicial hearing officer to hear and determine, the referee or JHO's decision has the same effect as a decision made by a judge. It is binding on the parties, and any appeal is taken directly with the Appellate Division. A hear and determine may only occur upon mutual consent of both parties. Absent this consent, the JHO or referee may only hear and report.



Hear and Report

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When a trial is referred to a referee or judicial hearing officer to hear and report, the JHO or referee will hear the case but instead of issuing a decision, a report will be written, which is non binding on the parties. Either side must then make a motion to confirm or reject part or all of the report. The judge will then issue a decision on this motion. A judge has the absolute authority to refer a trial to a JHO to hear and report. When a trial is referred to a JHO, most judges will give the parties the option to consent to a hear and determine.



Hearing

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A hearing is a judicial determination of a disputed issue, and is decided by a judge alone, without a jury. For an action, a hearing is normally a pre trial issue, or a post trial matter. For a special proceeding, or a Family Court proceeding, the hearing functions like a trial.



Hearsay

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Hearsay is an out of court statement being offered for the truth of the matter asserted. Both elements must exist for the evidence to be classified as hearsay. Hearsay evidence is not permitted, as it deprives the right to cross examine the person making the statement. However, there are numerous exceptions to the rule against hearsay, and if hearsay evidence meets one of the exceptions, it will be allowed in as evidence. Some of the more common exceptions are the business record exception, a statement against interest, a prior inconsistent statement, and the dying declaration.



Imprisonment (Grounds)

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Imprisonment for three or more years is grounds for a divorce under DRL 170(3) and for a judicial separation under DRL 200((5).



Income Deduction Order

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An income deduction order is an order which directs an employer to withhold a portion of an employee's pay and send it directly to a creditor or other payee as designated by the court.



In Camera interview with the Child

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An in camera interview with a child is the judge speaking with the child in chambers, with the child's attorney (formerly called the law guardian) present. A court reporter must also be present to take down all statements and testimony. The parents are not permitted to be present. The rules for an in camera interview will vary depending on the judge and the age and maturity of the child. Some judges will allow the parent's attorney to ask questions, some judges will allow the parent's lawyers to observe only, other times the lawyers may submit questions in advance but not observe or participate. In camera interviews were upheld by the Court of Appeals in Lincoln v. Lincoln, and are sometimes referred to as Lincoln hearings.



Injunction

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See restraining order.



Interlocutory

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None Final



Interlocutory appeal

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An interlocutory appeal is an appeal from a non final order, or interlocutory order or a temporary order. The right to appeal an interlocutory order terminates when the final judgment  is issued under the Court of Appeals case of Matter of Aho.



Interlocutory order

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An interlocutory order is an order issued prior to the final order or judgment. An interlocutory order need not be a temporary order.



Interrogatories

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Interrogatories are part of discovery. They are written questions which must be answered in writing and under oath.



Inquest

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In New York, an inquest is a trial or hearing in which only one side may present a case. The defaulting party may not offer any evidence, however, they are permitted to cross examine opposing witnesses and oppose any evidence offered. An inquest can result from a default or a court order precluding one side from participating in the hearing. When divorce grounds are resolved, the side which is "at fault" will withdraw their answer to the complaint (or the reply to the counter-claim) and allow the issue of grounds to proceed to inquest. At an inquest, a prima facie case must still be made by the participating party.



Irretrievable Breakdown of Marriage (Grounds)

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Irretrievable breakdown of the marriage for at least six months is a no fault ground for divorce adopted by New York in 2010 by the addition of subsection 7 to DRL 170. New York was the last state in the country to adopt true no fault when 170(7) was enacted.



Joint Custody

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Joint custody is a custody order which gives both parents equal say in the decision making process for their children. This joint authority gives each parent an absolute veto power over each other's custodial decisions.



Joint Tenancy

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A form of ownership where each owner holds an undivided interest with a right of survivorship. Upon the death of any joint owner, their interest passes automatically to the survivors.



Judicial Hearing Officer

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A judicial hearing officer is a judicial official authorized to hear cases. A judge has absolute authority to refer a matter to a J.H.O. to hear and report. Upon the consent of both parties, a J.H.O. may also hear and determine.



Judgment

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A judgment is a final judicial determination of the rights, claims and obligations of the parties.



Jurisdiction

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The term jurisdiction is a broad term encompassing the numerous types of jurisdictional concepts. Jurisdiction can include the geographical area of a court's jurisdiction, subject matter jurisdiction, personal jurisdiction, long arm jurisdiction, in rem jurisdiction or quasi in rem jurisdiction.


    Subject Matter Jurisdiction

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    Subject matter jurisdiction is the power of the court to hear a particular type of case. A determination by a court without subject matter jurisdiction is a nullity.



    Personal Jurisdiction

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    Personal jurisdiction is the power of the court over a particular defendant.



Law Guardian

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A law guardian was the name used to describe the attorney assigned to represent the interests of a child or multiple children in a court proceeding for custody, visitation, child neglect or abuse, termination of parental rights, PINS or juvenile delinquency proceedings. Law guardians are now called the attorney for the child.



Legal Separation

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A husband and wife are legally separated when there is a judgment of separation or they have entered into a validly executed written separation agreement.



Litigation

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Litigation refers to the process as to what happens during a lawsuit, starting when the action is commenced through trial.



Living Apart Pursuant to A Judicial Separation (Grounds)

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Living apart pursuant to a judicial separation for one year or more constitutes grounds for a divorce under DRL 170(5). Substantial compliance is required, trivial non compliance will not defeat the divorce.



Living Apart Pursuant to A Written Separation Agreement (Grounds)

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Living apart pursuant to a written and properly executed separation agreement for one year or more constitutes grounds for a divorce under DRL 170(6). Substantial compliance is required. Minor non compliance will not prevent the divorce from being granted.



Maintenance

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Maintenance is payments made to a current or former spouse for their support. Maintenance is sometimes called spousal support or alimony. Maintenance is a tax deduction for the paying spouse, and is considered taxable income to the receiving spouse. For payments to be considered maintenance, they must be (1) made pursuant to a written agreement or court order, (2) the payment must be in money, not in kind, and (3) the payments must be between current or former spouses. Maintenance may be ordered as part of a divorce or matrimonial action under DRL 236B(6). For further information, see the article "Maintenance in New York."



Marital Property

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Marital property is all property acquired by either spouse during a marriage, regardless of title, other than gifts from third parties, inheritances, and a portion of personal injury awards. For more information, see the article "Equitable Distribution in New York."



Mediation

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Mediation is an alternate dispute resolution process under which the parties work with an independent and disinterested third party (the mediator) to reach an agreement. Unlike a trial, where each party puts on their entire case and the judge then issues a judgment after hearing all evidence, mediation allows for a continual give and take, with both parties having the ability to accommodate each other's concerns during the entire process.



Misconduct Hearing (UCCJEA)

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A misconduct hearing is a hearing under the UCCJEA , DRL 76-g, to determine if one party improperly attempted to establish jurisdiction through their misconduct. The issue is limited to determining which state should exercise jurisdiction and not the merits of the case.



Motion

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A motion is a request for a court order outside of the final judgment. Motions can be made prior to the trial, during the trial, or post judgment. Motions are made either by a notice of motion, or by an order to show cause. For additional information see the article : Motions.


    Notice of Motion

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    A notice of motion is a motion made with advance notice to the opposing side. Eight days notice is required, with an additional five days if the motion is mailed. the side making the motion chooses the return date.



    Order to Show Cause

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    An order to show cause is a motion made without advance notice to the opposing side. The motion is submitted to the court, and the judge decides when the motion is returnable, how much advance notice the opposing side must be given, and how the motion must be served. The side making the motion may also request that the court grant an ex parte order. The court will decide whether or not to grant the requested ex parte order or not.


Modification

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A modification is a change in an existing order or judgment. A request for a modification is done through a motion in Supreme Court, or a petition filed in Family Court. Modification requests to not seek to challenge the original order, instead it seeks a new order based upon circumstances which are now present but were not in existence when the original order was issued. Child support, maintenance, custody and visitation orders may be modified. Property awards may not. For further information, see the article: Changing Court Orders and Judgments.



No Fault Divorce

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No fault divorce allows a divorce to be granted without a finding of wrongdoing by either party. For true no fault, there is no defense to prevent the divorce from being granted. Some states may impose preconditions before a no fault divorce can be requested, such as living apart for a specified amount of time. New York became the final state to adopt no fault. As of 2010, DRL 170(7) was adopted that allows a divorce to be granted upon the marriage irretrievably breaking down for six months or more. New York does have one additional ground that does not require one spouse to be at fault; DRL 170(6) permits a divorce to be granted if the parties live apart for one year or more pursuant to a written separation agreement. As such an agreement can only be entered into on the consent of both parties, it does not technically constitute true no fault.



Non-Marital Property

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See separate property.



Note of Issue

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A note of issue and certificate of readiness is the form used to certify that a case is ready for a trial. For uncontested matters, it certifies the matter is ready to have the court sign the judgment. A sample form is available here: Note of Issue.



Notice for Discovery and Inspection

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A notice for discovery and inspection is a discovery devise used to obtain documents and to inspect other tangible items.



Notice of Appeal

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A notice of appeal is the form used to commence an appeal of a trial court's order or judgment. Filing and serving the notice of appeal places the opposing side on notice that an appeal has been filed. The notice also confers jurisdiction to the appropriate appellate division. There are strict deadlines for filing a notice of appeal, and unlike almost any other deadline, there is no authority to extend the time to file a notice of appeal.



Notice of Appearance

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A notice of appearance is a form by which an attorney formally appears on behalf of a client in a pending matter.



Notice of Entry

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A notice of entry is a written notification of the date a judgment or order was entered in the county clerk's office. The date of the notice starts the time running to file a notice of appeal.



Notice of Motion

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See Notice of Motion under Motion



Notice of Settlement

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A notice of settlement is a written notification of the date a proposed judgment will be signed (settled) by the court. Settlement refers to signing the order or judgment, and has nothing to do with settling a case.



Nunc Pro Tunc

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To apply something retroactively, something that is done now but has the same legal effect as if it were done in the past.



Objections

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Objections are the first step in appealing a Family Court support order. Most child support proceedings under FCA Section 413 and Spousal Support proceedings under FCA Section 412 are not heard by a judge, but instead a Support Magistrate. Written objections must normally be filed within 30 days of the support order. Objections are reviewed by A Family Court Judge. The judge can either affirm or deny the objections, modify the support order if appropriate, or remand it back to the Support Magistrate. An appeal can be taken from the Family Court Judge who heard the objections. No direct appeal lies from a support order issued by a Support Magistrate. See also Rebuttal to Objections.



Order

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An order is a direction by the court which is not included in a judgment. An interlocutory order is a ruling on an intervening matter, a temporary or pendente lite order. A final order is a complete disposition of the matter pending before the court. an order is requested by the filing of a motion.



Order to Show Cause

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See Order to Show Cause under Motion.



Order of Protection

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An order of protection is a court order which sets forth conditions of behavior which must be obeyed. The order gives the police probable cause to make an immediate arrest if they believe the terms of the order have been violated. Should a violation of the order be found by the court, imprisonment may be imposed.



Original Record (appeal)

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The original record is one of the three ways to submit a record in an appeal. This method using the original trial court record, which is sent to the appellate division. No bound record is necessary. The original record is limited to appeals from Family Court. Compare with Full Record and Appendix.



O'Brien v. O'Brien

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The case of O'Brien v. O'Brien creates a new class of marital assets which are unique to New York. Under O'Brien, a professional license or an advanced degree is an asset which may be divided under equitable distribution. As of 2016, O'Brien was overruled by an amendment to DRL 236B, which prohibits awards of licenses or degrees. However, they are allowed to be considered when distributing other assets



Parenting Time

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Parenting time is a phrase used instead of visitation. The idea behind the term is that parents do not "visit" their children, but instead should have time for them to be a parent.



Parens Patriae

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Traditionally, the term parens patriae referred to the idea that the state was the guardian of a person under a legal disability. Today, it generally means that children are wards of the court, usually within the context of a custody proceeding.



Paternity

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Paternity is the state of being a father as recognized by law, to a child. For more information, see the article: Paternity Basics.



Perjury

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Perjury is knowingly making a false statement while under an oath.



Petition

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A petition is a pleading used in a special proceeding. A special proceeding may be commenced in Supreme Court. By definition, all matters in Family Court or Supreme Court are special proceedings, and use a petition instead of a complaint.



Petitioner

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A petitioner is the person bringing a petition; the individual making a claim in a special proceeding.



Pendente Lite

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Pendente lite literally means "pending the trial" and is another way of saying temporary. A pendente lite order is designed to meet the reasonable needs of a spouse, and maintain the status quo until a final determination is made at the conclusion of a case. An application for pendente lite relief is made by a motion, called a pendente lite motion.



PKPA

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The Parental Kidnapping Prevention Act is a Federal Law enacted to address interstate custody issues. The PKPA preempts any conflicting state law.



Plaintiff

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The plaintiff is the person who brings the action against the defendant.



Pleading

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Pleadings are the formal, written allegations and defenses of the parties in an action. They consist of the complaint, the answer which may also include a counter claim, and a reply, if the defendant asserted a counter claim in the answer.



Post Divorce Maintenance

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Power of Attorney

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A power of attorney is a written instrument which appoints an agent or an attorney in fact.



Preliminary Conference

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A preliminary conference is the initial conference in a litigated matter. At the conference, the case will scheduled for various discovery dates and a certification date to place the matter on the trial calendar.



Prenuptial Agreement

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A prenuptial agreement is an agreement entered into by prospective spouses prior to the marriage. Their respective property rights and financial obligations of each spouse are determined or otherwise specified.



Prima Facie

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A prima facie case is one with sufficient evidence to prevail if no opposing evidence is offered. It is the minimum needed to give the relief sought. Failure to make a prima facie case can result in a dismissal without any opposition being heard.



Privileged Communication

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A communication that is privileged may not be disclosed to a third party, even in the context of litigation. Thus, any statements made to to an attorney are confidential, provided they were made in the context of an attorney-client relationship and the privilege was not otherwise waived.



Pro Se

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To be pro se is to appear for oneself in court without retaining a lawyer.



Promissory Note

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A written promise to pay a sum certain at a specific time or on demand.



Qualified Domestic Relations Order (Quadro or QDRO)

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A quadro is a domestic relations order which is qualified to create an alternate payee's right to receive a portion of the benefits from a participant's pension plan.



Quash

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To make void or annul; as in quash a subpoena.



Quid Pro Quo

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Something for something. A mutual exchange of something of value.



Reargue

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To reargue is to request that a court reconsider a prior decision it made. No new information may be offered in a reargument. Contrast with renew. Requests to reargue are governed by CPLR 2221, and are made by motion.



Rebuttal (to Objections)

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A rebuttal is the formal opposition filed against objections.



Receiver

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A receiver is an agent appointed by the court to manage property in litigation, a custodian of assets.



Reimburse

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To pay back, repay what was expended.



Remit

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To remit is one possible result of an appeal, where the appellate court neither affirms, reverses or modifies the lower court's judgment or order, but instead returns the matter to the trial court for further proceedings in accordance with any terms set forth in the appellate court's decision.



Renew

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A request to renew is a request for a court to reconsider a prior decision based on new evidence. Contrast with reargue. Renewal is governed by CPLR 2221 and is made by motion.



Reply (Motion)

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In the context of a motion, a reply is made by the moving party in response to an affirmation in opposition. The content of the reply is limited to responding to the issues raised in the affirmation in opposition. No new issues may be raised in a reply.



Reply (Pleading)

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In the context of pleadings, a reply is filed by the plaintiff to an action as an answer to a counter claim filed by the defendant. A plaintiff may only file a reply if there is a counter claim. Absent a counter claim, the plaintiff may not file a reply.



Res Ipsa Loquitur

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The thing speaks for itself. An inference of something occurring , usually negligence, that upon reasonable belief, that would not have occurred had reasonable care been used.



Respondent

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A respondent is the individual named in a petition against whom certain allegations are made, and who denies or opposes the claims and relief sought in a petition.


A respondent is also the party against whom an appeal is taken, the party who supports the trial court's order.



Restraining Order

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A restraining order is a court order which prohibits a party from doing a specified act. A restraining order is binding on non parties as well. A request for a restraining order is made by a motion, and may be done ex parte if there is a showing of prejudice to the side seeking the order if notice is given.



Retainer

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A retainer is an advance payment of legal fees to secure the services of a lawyer. As legal fees are incurred, they are billed out of the retainer.



Request for Judicial Intervention

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A request for judicial intervention, commonly known as an RJI, is a form used to assign a judge to a case. Only one RJI need be filed. The fee for an RJI as of 2015 is $95. The official form for an RJI is available in pdf format: RJI Form.



Separation Agreement

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A separation agreement is an agreement made between a husband and wife made pursuant to Domestic Relations Law 236 B(3). It may include an agreement as to respective property rights for both spouses, the amount and duration of maintenance, an agreement as to the custody of children, and for child support.


Living apart pursuant to the terms of a separation agreement for one year or more is a grounds for divorce under DRL 170(6). For additional information, see the article Divorce Grounds in New York.



Separate Property

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Separate property is property which is acquired prior to the marriage, an inheritance, gifts from someone other than the spouse, and property defined as separate under a written agreement.



Service of Process

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The act of delivering the summons with notice or summons and complaint to a defendant in an action. When personal service cannot be made, a request for substituted service, including service by publication can be made.



Service by Publication

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Service by publication a form of substituted service where the summons is served by publishing it as an advertisement in a newspaper.



Settle Order

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Settle order is submitting a proposed order to court whose terms match an underlying decision.



Settlement

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A settlement is an agreement between two parties in dispute whereby they resolve some or all differences between them.



Spousal Support

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Spousal support is the payment of money from one spouse to another. The term is often used interchangeably with maintenance. Spousal support also refers to a spouse's obligation to support their spouse under Family Court Act 412.



Statement of Client's Rights and Responsibilities

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An attorney must provide a statement of Client's Rights and Responsibilities to every client upon an initial consultation, or shortly thereafter, for any domestic relations matter for which the attorney is consulted. The client is required to sign a copy as proof that he or she was provided with the statement, and the attorney is required to keep a copy of the statement for his records. The statement informs the client that an attorney is required to provide a written retainer agreement, that the client must be billed no less than every sixty days, that contingency fees are prohibited in domestic relations matter, and that an attorney may not seek a non refundable retainer. A copy of the statement is available here: Statement of Client's Rights and Responsibilities.



Statement of Proposed Distribution

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A statement of proposed distribution is a form used to assist the court with a divorce trial. It lists the support and distribution of assets by each party, and the supporting statutory factors to justify each party's position.



Statement of Net Worth

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A statement of net worth is a mandatory form of financial disclosure as required by DRL 236 B. It includes a breakdown of itemized expenses, itemized income from all sources, itemized assets of both marital and separate property, itemized liabilities of marital and separate property, along with other disclosure. A copy of the form is available here: Statement of Net Worth.



Stipulation

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A stipulation is an agreement made by two attorneys representing the opposite sides in a pending case. Stipulations can be agreed upon facts, discovery dates, or other agreements.



Substituted Service

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Service of process by any means other than personal service. Substituted service may require a court order before being used.



Subpoena

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A document which compels a witness to appear at a specific place and time, either for discovery or for a trial. A subpoena can also request the production of documents , this is known as a Subpoena Duces Tecum. An attorney is authorized to issue most subpoenas. A pro se litigant may issue a subpoena, but they are required to have the subpoena "so ordered" by having the subpoena signed by the presiding judge.



Summons

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A written document which notifies a defendant that a court action or proceeding has been filed against him or her. In New York, the summons must be accompanied by the complaint, or the summons must contain a brief notice as to the nature of the lawsuit. See Summons with Notice.



Summons with Notice

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A summons with notice is an alternate means of commencing a lawsuit, and may be used instead of a summons and complaint. Instead of the complaint, a brief notice of the nature of the action. The complaint must still be served at a later date.



Summary Judgment

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A summary judgment is an immediate judgment without a trial. It is made by a motion made for immediate judgment on the basis that there is no issue which needs to be tried, that there is no disputed fact or law for which the court need decide.



Support Magistrate

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A support magistrate is not a judge, but acts in a quasi judicial function. Support magistrates are authorized to hear support cases and uncontested paternity matters in Family Court. An adverse ruling issued by a support magistrate may not be appealed directly. Instead, the party seeking judicial review must file objections. Support magistrates were formerly known as hearing examiners.



Supreme Court

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Supreme Court in New York is the lowest level trial court of general jurisdiction. Each of New York's 62 counties has one Supreme Court, making it the supreme court for the county. Supreme Court is a court of equity. Supreme Court's authority comes from the New York State Constitution. Only Supreme Court can grant a divorce, Family Court, which is a court of limited jurisdiction, is powerless to change the status of the marriage.



Temporary Maintenance

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Temporary maintenance is maintenance paid during a divorce before the judgment is issued. Temporary maintenance is determined by a formula set forth in DRL 236 B(5-a).



Temporary Maintenance Formula

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Under DRL 236 B(5-a), temporary maintenance is calculated by using a mathematical formula. The 2016 amendments significantly revise the original framework adopted in 2010. See Temporary Maintenance article for more information.



Temporary Order

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A temporary order, also known as a pendente lite order, is an order issued by the court which lasts while the case is pending, but before the final order or judgment, which are issued by settlement or following a trial.



Tenants by the Entirety

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A form of joint tenancy between a husband and wife. It has all the characteristics of a joint tenancy. In addition, a creditor of one of the spouses may not enforce a lien against the property.



Tenants in Common

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A form of ownership under which each owner holds an undivided interest in property. The interest of each owner passes to his or her estate upon death. There is no right of survivorship for the remaining owner. Contrast with joint tenancy, tenants by the entirety.



Trial

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A judicial determination of issues between two (or more ) parties. A trial can involved disputed facts or disputed law, or both.



UCCJEA

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The Uniform Child Custody Jurisdiction and Enforcement Act is a model act which replaced the old Uniform Child Custody Act (UCCJA) due to the latter's inconsistencies with the PKPA. The UCCJEA has been adopted by 49 states as of 2016. The UCCJEA provides that if there is no prior custody order, the state where a child lived for the past six months will have exclusive jurisdiction. If there is a custody order, the state which issued that order will have continued exclusive jurisdiction if at least one parent or the child continues to reside in that state. New York adopted the UCCJEA as Part 5A, Sections 75, 76, 77, and 78 of the domestic relations law.



Uncontested Divorce

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An uncontested divorce is a divorce where both spouses agree on all issues, including grounds, equitable distribution, custody, child support & maintenance. An uncontested divorce may result from a default, where the defendant files an affidavit stating they do not oppose the divorce, or by a stipulation of settlement.



Venue

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Venue is which county a case will be heard. It is not to be confused with jurisdiction, which is statewide. Venue is normally where either the plaintiff or the defendant live. Improper venue will usually result in the case being transferred to the correct venue.



Vested Right

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A right which is secured and enforceable, one which is not contingent.



Visitation

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The right of a non custodial parent to see their children pursuant to a court order. See also parenting time.



Void Marriage

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A void marriage is one which can never be legitimate. New York recognizes three types of marriages which are always void : incestuous marriages (DRL 5) , a marriage when the prior marriage was not dissolved and the prior spouse is still living (DRL 6), and a marriage which was not solemnized by someone authorized by law. (DRL 11).



Voidable Marriage

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Voidable marriages are those which are valid until a court determines them void. New York holds the following types of marriages as voidable: under the age of consent (DRL 7(1)), lack of consent due to lack of understanding (DRL 7(2)) inability to enter into the marital relationship (DRL 7(3)), force, duress or fraud (DRL 7(4)), and incurable mental illness for five years or more (DRL 7(5)).



Voir Dire

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A preliminary examination made before or during a trial. Jury selection, qualification of an expert witness or evidence may be the subject of a voir dire.



Warrant

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An arrest warrant is a written order which directs a law enforcement officer to arrest an individual and bring that person before the court.



Witness

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An individual who at a trial or hearing, testifies under an oath as to what he or she observed or heard.



Writ

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A writ is a court order which specifies a specific act to be performed, or gives the authority to have the act performed




J. Douglas Barics, Esq.

356 Veterans Memorial Highway - Suite 3

Commack, NY 11725

Phone:(631) 864-2600

Email: lawyer@jdbar.com

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Copyright © 2009 - 2016 by J. Douglas Barics, Esq. All rights reserved

J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.


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