Common Family Law Terms

Abandonment of Spouse

When one spouse has left the other spouse with the intention of abandonment and has remained away for at least one year.

Admissible; Admissibility

Any testimony, document, or demonstrative material officially considered by the court, i.e., allowed into evidence, generally in compliance with the rules of evidence.

Admissions; Requests for Admissions

One party to a case can require the other party to admit or deny in writing and under oath various assertions. The party receiving the request has 30 days from the date they receive the request to admit or deny each assertion. Failure to respond timely will result in all of the assertions "deemed" admitted.

Adultery

Sexual intercourse between a married person and a third party.

Affidavit

A written statement, voluntarily signed under oath, usually in support of a motion.

Alimony (Spousal Maintenance)

Spousal support sometimes paid by agreement of the parties or by court order. The payments are usually periodic payments, but sometimes in a lump. In order to qualify for spousal maintenance in Texas, the requesting party must meet one of three requirements:

• The paying spouse was convicted of family violence within 2 years of the date of filing;
• The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and is unable to support him/herself through appropriate employment due to an incapacitating physical or mental disability;
• The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and is the cusodian of a child who requires substantial and personal supervision, requiring that parent to remain at home with that child; or
• The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and the requesting spouse lacks earning ability in the labor market adequate to provide support for minimal needs If the party qualifies for maintenance under (1) (3) or (4), the maximum term of maintenance is 3 years and the amount ordered cannot exceed 20% of the gross income of the paying spouse. If the party qualifies for maintenance under (2), the term can be indefinite.

Annulment

The court's judgment that a so-called "marriage" was never legally valid or invalid after the marriage. For example if one spouse was under the age of 18 and did not have proper consent, if one spouse was mentally incompetent and incapable of consenting to marriage, if one spouse was under the influence of alcohol or drugs at the time of the marriage and not capable of consent, or if one party used fraud, duress or force to induce the other party into marriage.

Answer to Petition and Counterclaim

A responsive pleading that answers allegations made in the petition. A counterclaim sets forth the defendant's allegations against the petitioner, as if the defendant were asking for a divorce in the first instance.

Antenuptial Agreement

See Prenuptial Agreement

Appeal

Review of a trial court's decision and judgment by a higher court. The appeals court can review the trial court's "findings of fact" and "conclusions of law." See Decision and Judgment.

Appear; Appearance; File an Appearance

The first time a party "appears" in a case, either by written pleading or by physical appearance at a hearing.

Arbitration

A non-judicial procedure, which may be binding or not, as determined by the parties in advance, which is held before a neutral third party, the "arbitrator," who acts as private judge.

Arrearages

The deficiency between the amount, if any, paid and the amount required under court order.

Attachment of Property

A lien on personal or real property created by court order in response to a motion for attachment of property.

Attorney Ad Litem for Children

A court-appointed attorney who represents the stated wishes of the child(ren) and advocates for their legal interests. Unlike a guardian ad litem who acts in the child's best interest by substituting her own judgment for the child's, the attorney for the child(ren) must advocate those causes espoused by the child(ren) and generally not substitute his or her own judgment.

Bankrupt; Bankruptcy

The inability of a person to pay bills as they become due. Also, a person's legal status in federal bankruptcy court. Alimony and child support are generally not affected, but property divisions, including the marital home may be affected.

Bench Trial

A judicial hearing before a judge without a jury.

"Best interest of the child"

The legal standard or doctrine for making child-related decisions.

Brief

A document written in support of a motion.

Burden of Proof

The party asserting a claim must prove such claim is true--in civil cases the party must prove the claim by a preponderance of evidence. In order to terminate a person's parental rights, a party must prove their claim by clear and convincing evidence. In criminal cases, proof must be beyond a reasonable doubt.

Capias

A civil arrest warrant ordering the sheriff or other officer to take a person into custody and deliver him or her to court. This procedure is used when a party refuses to appear in court.

Cause of Action; Claim

A lawsuit. To bring an action (lawsuit). Certain wrongful acts are actionable offenses, meaning that suchacts are the grounds for a lawsuit, i.e. they create a cause of action.

Change of Venue

See Venue; Change of Venue

Child Abduction

See Parental Kidnapping

Child Abuse

• Mental or emotional injury to a child that results in impairment in the child's growth, development, or psychological functioning;
• Allowing a child to be in a situation in which the child sustains a mental or emotional injury to a child that results in impairment in the child's growth, development, or psychological functioning;
• Physical injury that results in substantial harm to the child;
• Failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
• Sexual conduct harmful to a child's mental, emotional, or physical welfare;
• Failure to make a reasonable effort to prevent sexual conduct harmful to a child;
• Compelling or encouraging the child to engage in sexual conduct;
• Use of a controlled substance that results in the physical, mental or emotional injury to a child;
• Causing, expressly permitting, or encouraging a child to use a controlled substance;
• Causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child;
• or Causing, permitting, encouraging, engaging in or allowing obscene photos to be taken of a child.

Child Neglect

• Leaving a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and with the intent not to return;
• Placing a child in or failing to remove a child from a situation that requires judgment or actions beyond the child's ability and that results in injury or a risk of immediate harm to the child;
• Failing to seek, obtain, or follow through with medical care for a child, which results in a risk of death, disfigurement or injury, or an impairment to the growth, development or functioning of the child;
• Failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child;
• or Placing a child in or failing to remove the child from a situation in which the child would be exposed to a risk of sexual conduct harmful to the child.

Child Support

Court-ordered or voluntary payments from the non-custodial parent to the custodial parent, not tax deductible by the paying parent, nor includable in the recipient parent's taxable income. In Texas, a child support obligation continues until a child reaches the age of 18 and graduated from high school (as long as they continue to be fully enrolled after age 18), unless the child is otherwise emancipated (by death, marriage or court order). If a child is disabled, an obligation for support could continue indefinitely.

Child Support Guidelines

State guidelines requiring the non-custodial parent, under normal circumstances, to pay child support based on a percentage of net income. The percentage of support depends upon the total number of children for which a parent has an obligation to support.

COBRA (Consolidated Omnibus Budget Reconciliation Act)

Federal legislation that guarantees all persons covered by medical insurance, the right, for a monthly fee, to continue coverage for a limited time even if employment or marital status changes.

Common Law Marriage

A judicially-recognized marriage where two persons hold themselves out to others as married, although there has been no formal marriage ceremony.

Community Property

Property, acquired by either spouse during marriage, not including gifts or inheritances.

Conflict of Interest (Rules)

Lawyers are prohibited from entering certain relationships in which the lawyer, by virtue of his profession, received or appeared to receive confidential information about the opposing party. No lawyer can ever represent both sides in a divorce, even if uncontested.

Conservatorship / Custody

There are 3 types of conservatorship in Texas: Sole Managing Conservatorship, Possessory Conservatorship and Joint Managing Conservatorship. There is a presumption under Texas law that Joint Managing Conservatorship is best for children, although in cases where there has been domestic violence or where one parent has demonstrated an inability or unwillingness to act in the best interest of the children, the court may impose a sole managing conservatorship. In a sole managing conservatorship arrangement, one parent has the exclusive right to make all significant decisions for the child, including the where the child will reside, and all medical, educational and legal decisions. The other parent would be named a possessory conservator and (except in unusual circumstances) would have the right to visit with the child and to receive information relating to the child's health, education and welfare.

In a joint managing conservatorship arrangement, the parents share the rights to make decisions for the children, although the children still generally reside with one parent and visit with the other. In a court-ordered joint managing conservatorship, one parent has the exclusive right to determine the primary residence of the children, often with a restriction on that right to a particular geographic area, and the other parent visits with the children in accordance with a very specific and detailed visitation schedule (often the "Standard Possession Order").

In an agreed joint managing conservatorship, the parties can agree that neither parent is the "primary" parent, but simply determine that the children's residence will remain within a particular geographic area and the parties can create a shared possession schedule with the children. Consolidation The joining of two related cases.

Constable

A publically elected official who is legally empowered to serve process and perform other duties of a peace officer. Contempt of Court, Motion for Legal action brought when the plaintiff alleges a willful failure to obey a court order or judgment.

Contested and Uncontested Divorce

In contested divorces, the parties are adversarial, they cannot agree on the terms of divorce, such as custody, visitation, child support, and division of assets and debts. In uncontested divorces, the parties agree to all matters, and present an executed decree of divorce to the court for approval.

Contingency Fee

In divorce cases, an unethical type of fee agreement providing the lawyer with a percentage of your settlement or judgment.

Court Order

A written instruction from the court carrying the weight of law, i.e., the knowing violation of which constitutes contempt of court.

Cross-examination

Following the direct examination of a witness by a lawyer, cross examination is the follow-up questioning by the opposing lawyer.

Dating Violence

An act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but doesnot include defensive measures to protect oneself. "Dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature, taking into consideration the length and nature of the relationship and the frequency and type of interaction.

Default Judgment / Order

An order made by the court when one party, although property served in a case, does not participate in the case. At a default hearing, the petitioner can request any relief from the court that is reasonable, given the evidence presented by the petitioner. If the respondent isn't there to counter the evidence presented, the petitioner can essentially get any orders s/he wants.

Deposition

An oral examination taken under oath, usually before a stenographer, and usually at the attorney's office who requests the deposition. Any person, whether a party to the case or not, can be called to a deposition, provided they have relevant evidence to give. The notice requesting the deposition may also contain a list of documents to be produced at the deposition.

Discovery; Pretrial Discovery

Discovery is the formal procedure for gathering information pursuant to rules of court. The primary methods are requests for disclosure of certain facts and issues, requests for admissions, requests for production of documents, written interrogatories, depositions, and subpoenas to third parties. Unless the request violates a rule of discovery or imposes on a privilege, the party who receives a request for written discovery generally has 30 days with which to comply, or that party could face sanctions from the court.

Domicile

A person's "legal" home, i.e., where the person spends most of his time, or intends to return, if currently living elsewhere.

Domicile Restriction

In an effort to promote regular and continuous contact with both parents, a court can impose a restriction on a child's domicile to a particular geographic location, usually a county and contiguous counties. In other words, the parent with the exclusive right to determine the child's residence can be restricted in that determination.

Emancipation

The time at which a child becomes a "legal" adult. This can occur at the age of 18, at the time when the child marries (if before age 18), or by court order.

Enforcement, Motion for

When a party is in violation of a court order, the other party may file a request with the court to enforce the order. As part of enforcing the order, the court may find that the violating party is in contempt of court and may sanction that party with jail time, fines, probation or several other sanctions. This is most often used for parents who don't pay their child support or parents who refuse to turn the child over to the other parent in accordance with the terms of possession in their order.

Equitable Division of Property

In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard of the rights of each party and any children of the marriage. This does not mean that the court must divide the property 50/50. In making a "just and right division" of the property the court may consider the following factors:

• Fault in the breakup of the marriage;
• Fraud on the community;
• Benefits the innocent spouse may have derived from the continuation of the marriage;
• Disparity of earning power of the spouses and their ability to support themselves;
• Health of the spouses The spouse to whom conservatorship of the child is granted needs of the child of the marriage;
• Education and future employability of the spouses;
• Community indebtedness and liabilities;
• Tax consequences of the division of property;
• Ages of the spouses Earning power, business opportunities, capacities, and abilities of the spouses;
• Need for future support;
• Nature of the property involved in the division;
• Wasting of community assets by the spouses;
• Credit for temporary support paid by a spouse;
• Community funds used to purchase out-of-state property;
• Gifts to or by a spouse during the marriage;
• Increase in value of separate property through community efforts by time, talent, labor, and effort;
• Excessive community-property gifts to the parties' child;
• Reimbursement;
• Expected inheritance of a spouse;
• Attorney's fees to be paid;
• Creation of community property through the use of a spouse's separate estate;
• The size and nature of the separate estates of the spouses Creation of community property by the efforts or lack thereof of the spouses;
• Actual fraud committed by a spouse;
• Constructive fraud committed by a spouse

Ethics; Legal Ethics

A code of conduct, also known as the Code of Professional Responsibility, imposed on attorneys. Violations may subject the attorney to disciplinary proceedings and malpractice claims. Evidence Any testimony, document, or demonstrative material.

Exhibit(s)

Any evidence attached to a pleading or introduced at trial, for example, a party's pay stub attached to a party's pretrial forms.

Ex Parte: hearing, motion, order

Ex parte means without notice to, or attendance of, the opposing party.

Expert Witness

In divorce cases, most of the experts that are called to testify, testify as to the value of the marital home, pensions, and privately-held businesses, and to the tracing of separate property. In child-related disputes, mental health professionals are often called to testify.

Family Violence

An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault or sexual assault, or is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect oneself. Family violence also includes physical injury that results in substantial harm to a child, sexual conduct harmful to a child's mental, emotional, or physical welfare, or compelling or encouraging the child to engage in sexual conduct.

Fault and No-fault Divorces

In fault divorces, the petition for divorce must state grounds for divorce. They include cruel treatment, adultery, abandonment, and other types of misconduct. No-fault petitions for divorce merely allege "insupportability" of the marriage. The court must find that there is discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.

Fee Agreement; Retainer Agreement

The written contract between you and your lawyer.

File; Filing

Any document submitted to and officially received, i.e., "docketed" by, the clerk of the court.

Find; Findings

After considering the evidence presented, a court or jury interprets the evidence and sets forth what it believes, i.e.,finds, are the actual facts. Courts have great latitude in weighing evidence and in believing or disbelieving witnesses. The court's findings, along with its "conclusions of law," form the basis for the court's decision. See Decision and Judgment.

Full Faith and Credit

A term found in the United States Constitution (Art IV, Sec. 1) requiring each state to honor the legal judgments of other states.

Garnishment

See Wage Withholding

Grandparent Visitation

See Visitation, Grandparent

Ground(s) for Divorce

Certain improper or troublesome behavior that constitutes a "legal reason" for the court to grant a divorce. They are:

• Adultery
• Cruel treatment (that renders further living together insupportable)
• Abandonment (for at least one year with the intent to abandon)
• Long-term incarceration (more than one year)
• Confinement to a mental hospital for at least 3 years
• Living apart for at least 3 years
• Insupportability (no-fault): discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.

Guardian ad Litem ("G.A.L.")

A court-appointed individual who, for the purpose of pending litigation, puts himself or herself in the shoes of a legally incompetent person such as a minor child. He or she also investigates the matter and files a report with the court.

Hague Convention on the Civil Aspects of International Child Abduction

An international agreement among 37 nation signatories with the following stated objectives: to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the Other Contracting States.

Hold Harmless; Hold Harmless Agreement

The contractual assumption of certain liabilities by a party who agrees: 1) not to look to the other party for assistance in satisfying such liabilities, and 2) to defend ("indemnify") the other party against third party claims, if a third party, such as a mortgage lender or credit card company, sues you.

Impeach; Impeachment of Testimony

Discrediting a witness by proving lies, inconsistencies in stories told, and untrustworthiness. The witness may be impeached during cross-examination or by the direct testimony or evidence of another witness. See Direct and Cross Examination.

In Camera Hearing

A closed-door hearing in judge's chambers, usually concerning sensitive child-related issues.

Infant

A person who has not reached legal majority, usually 18 years of age. Also, referred to as a "minor," or unemancipated child.

Injunction; Injunctive Relief

A court order prohibiting certain activity. See Temporary Order; Temporary Restraining Order.

Innocent Spouse; Innocent Spouse

Rule Section 434(c)(1) of the Internal Revenue Code protects an "innocent spouse" from tax liability if certain conditions are met: A joint return was filed The return contained a "grossly erroneous" error The innocent spouse establishes "lack of knowledge In light of all the "facts and circumstances" it would be "inequitable" to impose the tax on the innocent spouse. Tax counsel should be consulted.

Interrogatories

Interrogatories consist of written questions propounded to a person (who must be a party to the case). Answers must be in writing and made under oath pursuant to rules of court. See Discovery; Pretrial Discovery.

Joint Managing Conservatorship

See Conservatorship / Custody

Jurisdiction

The court's legal authority to hear your case and issue legally enforceable orders and judgments. If one party has lived in the State of Texas for 6 months and has lived in the county of filing for 90 days, the court will have "jurisdiction" to hear that party's divorce.

Legal Custody

See Conservatorship / Custody

Legal Separation

Texas courts do not grant legal separations, but all separations are legal in the sense that people have the right to live apart without a court order. After a petition for divorce has been filed in Texas, the parties may request to live under "temporary orders" (see below), which essentially are the "rules" the parties will live under until their divorce is final, or until they reconcile.

Managing Conservator

See Conservatorship / Custody

Mediation

An informal process (required by many counties to be completed prior to trial) allowing parties to work with a neutral third party (the "mediator") to attempt to negotiate and settle all terms of their conflict. All communications (with very limited exception) made during the mediation process are protected by rules confidentiality and cannot be used at trial. Parties can propose and agree to creative settlements that could not otherwise be ordered by a court during litigation.

Modification, Motion for

A request to the court to change or modify a prior court order, including a decree of divorce. This is most often used when a parent wants to change custody, modify an existing possession schedule, restrict a child's domicile to a specific geographic location, or to change the amount of ordered child support (up or down).

Motion

A written request asking or "moving" the court to grant a temporary order, or rule on a legal matter.

Negotiated Settlement; Negotiated Agreement

The parties, usually with counsel, create and agree to a final settlement. These agreements are not mediated; the parties, without any neutral third-party settle their controversy through negotiation.

No-Fault Divorce

See Fault and No-Fault Divorce

Parental Kidnaping

The act of one parent illegally taking or restraining a child.

Paternity Registry

A Man who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity before the birth of the child or within 31 days after the date of birth of the child.

Perjury

Perjury is knowingly lying under oath.

Petition for Divorce

A petition for divorce initiates the divorce proceeding by identifying the parties; stating the grounds for divorce; stating all claims against the defendant; and requesting the court to grant a divorce, grant custody, divide property, and order support. All petitions must be filed with the District Clerk's Office in the relevant county and properly served on the opposing party.

Pleadings

Includes the petition, answer, and counterclaim and any other motions.

Possessory Conservator

See Conservatorship / Custody

Postnuptial Agreement

Same as prenuptial agreement, but entered during the term of the marriage, often revising a prenuptial agreement.

Prejudice; With and Without Prejudice

The concept that what happens in court or by stipulation of the parties will affect future proceedings. Generally, temporary orders are said to be without prejudice, which means that the parties have a right to a trial on all matters, including those decided by temporary orders. In contrast, with prejudice means that even at trial the earlier order determines the outcome. If your petition for divorce is dismissed without prejudice, you may file again. If it is dismissed with prejudice, you may not refile.

Preliminary Hearing

Any court proceeding that occurs prior to trial.

Prenuptial Agreement

A written, premarital contract dealing with death and divorce, setting forth the rights and responsibilities of the parties upon occurrence of these events. The parties are required to make a "full and fair disclosure" of all of their assets to make the agreement valid. The agreement must also be "fair and reasonable" at the time it is signed and also at the time a party seeks to enforce it.

Pretrial Forms

Various counties (including Travis and Williamson) require that certain forms be completed and submitted before the parties can have a hearing. For a temporary orders hearing in Travis County, the parties must complete a budget and expense form and bring it with them at the time of the hearing. For a final hearing, the parties must complete a full "disposition of issues", which sets out very specifically how each party requests that the issues be settled by the court. These forms for final hearing are due one to two weeks prior to trial.

Privilege

Refers to evidence based on private communications made within legally recognized "confidential relationships," such as husband-wife, attorney-client, patient- psychiatrist, and priest-penitent. It also includes the privilege against "self incrimination" which can be asserted by a party accused of any crime, or with contempt of court.

Production of Documents

Under a rule of court the plaintiff or defendant is allowed to demand documentary evidence to be produced by the other party. See Discovery; Pretrial Discovery.

Pro Se; Pro Se Appearance

When a party handles his or her own case without an attorney, i.e., represents him/herself, s/he is said to appear "pro se."

QDRO (Qualified Domestic Relations Order--pronounced "kwahd-row")

A court order directed to a "plan administrator" or "custodian" allocating retirement benefits between spouses.

Request for Admissions

See Admissions.

Request for Production of Documents

See Production of Documents.

Restraining Order

A temporary court order prohibiting a party from certain activities. Restraining orders often are issued to protect marital assets and to protect against domestic violence. In Texas, a party is entitled to a standard temporary restraining order at the time of filing a new petition for divorce or a new motion to modify terms of conservatorship of a child. If circumstances warrant, the court may grant a restraining order at other times during a case, and, if circumstances warrant, a court may add additional restrictions than the standard. For example, if a party alleges that domestic violence has occurred between the parties, the court may order the accused party out of the marital residence until a hearing can be held.

Temporary restraining orders are only valid for 14 days, during which time a court will schedule a hearing to give the other party a chance to be heard (since they are issued to one party without notice to the other). For most family cases, at the time of the hearing the court will simply make the restraining order a temporary injunction (no automatic expiration date) and make it mutual as against both parties, requiring them to act civilly toward each other and to requiring them to preserve the marital estate until it can be fairly divided.

Retainer Agreement

See Fee Agreement

Rules of Evidence

The statutory rules governing testimony, documents, and demonstrative materials.

Sanctions

Penalties against a party or counsel for improper behavior, such as filing frivolous claims or withholding evidence.

Secretion of Assets

The hiding of assets Self Incrimination; the right against The right of the accused not to admit criminal wrongdoing, including violation of a court order (contempt).

Separate Property

Property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Separate property cannot be awarded by a court to the other party during a divorce. It is the burden of the party claiming that property is separate to prove that such property is actually separate property.

Separation

See Legal Separation

Service; Service of Process

The legal process of informing the opposing party, i.e., "giving notice," that a petition or motion is pending before the court.

Sole Managing Conservator

See Conservatorship / Custody

Standard Possession Order

The Texas Family Code sets out a visitation schedule presumed to be in the best interest of children over the age of 3. It has two parts: one schedule for parents who live within 100 miles of each other and another schedule for parents who live more than 100 miles apart.

Within 100 miles, the visiting parent has the right to possession of the child on 1st, 3rd and 5th weekends of each month, Wednesday evenings, 30 days in the summer, half of every Christmas break, every other Thanksgiving and every other Spring Break.

Over 100 miles, the visiting parent has the right to possession of the child on 1st, 3rd and 5th weekends of each month or one weekend each month, plus 42 days in the summer, every Spring Break, half of every Christmas Break and every other Thanksgiving. For children under the age of 3, there is no presumed "best" schedule, but courts tend to make orders that allow for short, frequent visits with the parent, without long breaks away from either parent.

For example, for an infant, the court may order 2 hours on Tuesdays and Thursdays and 4 hours on Saturdays. The court will usually "stair-step" the schedule so that by the time the child is 3, the schedule is the Standard Possession Schedule. Parents may always modify the Standard Possession Schedule by agreement.

Also, since the Standard Possession Schedule won't work in all cases (for example, children who attend year-round school, or parents who work unusual hours), the court (or the parents, by agreement) can make an order that accommodates the unusual circumstances.

Stipulation; Stipulated Agreement

A written agreement intended to be entered as a court order upon assented to motion of the parties.

Strike; Motion to Strike

Upon motion of a party, a court may remove certain pleadings and evidence from a case upon finding such material totally irrelevant, improper, scandalous, or without proper notice.

Subpoena; Subpoena Duces Tecum

An order issued to a party or non-party to a case, to attend a legal proceeding such as a trial or deposition.If documents also are requested, the subpoena is called a subpoena duces tecum, Latin for "bring with you." See also Discovery; Pretrial Discovery.

Supervision; Supervised Visitation

See Visitation

Temporary Orders

While a family law case is pending (i.e. a petition has been filed, but there are no final orders yet), either party may request that the court make temporary orders. In a divorce case, temporary orders generally address conservatorship, visitation, child support, temporary use and possession of property, temporary servicing of debt, temporary spousal support, interim attorney's fees and a temporary injunction to preserve property. Essentially, temporary orders set out the "game plan" the parties will live under until a final order is made in the case.

Temporary Restraining Order (TRO)

See Restraining Order

Testimony

Any statement made under oath.

Tort; Marital Tort; Domestic Tort

A tort is any wrongful act which creates legal liability against the defendant or "tortfeaser." Certain domestic torts recognized in the State of Texas include: Intentional Interference With Child Custody, Breach of Fiduciary Duty, Fraud (Actual or Constructive), Intentional Physical Injury, Transmission of Sexual Disease, Intentional Infliction of Emotional Distress, Tortious Interference with Business Relations, et al.

Trial; Hearing on the Merits; Evidentiary Hearing

A formal proceeding before a judge who hears testimony under the rules of evidence and makes a final decision or judgment relating to the matters presented. All such decisions are with prejudice, since they are final adjudications of the matters presented.

Uncontested Divorce

A divorce in which the parties agree on all matters necessary to finalize their divorce, including conservatorship of the children, visitation, child support, and division of property and debts.

Venue; Change of Venue

The location of the court, in contrast to jurisdiction, which determines whether a court has legal authority to hear a case. Venue is where a court, with proper jurisdiction, will hear the case. When a case is transferred to a new location within the same jurisdiction (county or state), the transfer is called a change of venue.

Violence

See Family Violence and Dating Violence

Visitation, Grandparent

Grandparents are entitled to request access to their grandchildren under very limited circumstances. A grandparent may request access if at least one parent has not had their parental rights terminated, and: the grandparent is the parent of a parent, and that parent has been incarcerated for at least 3 months prior to filing; the grandparent is a parent of a parent, and that parent has been found to be incompetent or is dead; the grandparent is a parent of a parent whose parental rights have been terminated; the parents are divorced, have filed for divorce, or have been living apart for at least 3 months; the child has been abused or neglected by a parent; the child has been adjudicated as delinquent; or the child has resided with the grandparent for at least 6 months within a 24 month period preceding filing the request.

Additionally, the court must consider that if the custodial parent is found to be competent and capable of making appropriate decisions for the child, the court cannot interfere with that parent's right to make the decision to deny access to grandparents.

Visitation; Supervised Visitation

Pursuant to stipulation, agreement, or court order, visits of unemancipated children with their non-custodial parent. Visits may be supervised by a responsible adult when the non-custodial parent is accused of child abuse or neglect.

Wage Withholding Order

A court order to a third party, usually an employer, requiring a non-custodial parent's child support payment to be automatically deducted from a paycheck and paid directly to a custodial parent.

Writ of Attachment

A court order to a Sheriff or Constable in the State of Texas to physically remove a child from one person and deliver such child to another. These writs are used in cases where one person is refusing to comply with a court order to return the child to another party, or when the party withholding the child is endangering the child.

Writ of Habeas Corpus

An order of a court to "produce the body" or bring a person to court. This is often issued to a person who has possession of a child in violation of a court order or to a person who is interfering with another person's right to possession. The court will order that the child be brought to court to be returned to the person with the superior right of possession.

Morehart & Weinman

812 San Antonio Street, Suite G-20
Austin, TX 78701
(512) 472-4040
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At Morehart & Weinman in Austin, family law attorney Daryl Weinman helps Texas clients throughout Travis County and Williamson County in communities such as Austin, and Georgetown.