Glossary of Terms

Child Specialist – An experienced, licensed therapist with specific education and training in the expected behaviors, stages, challenges and tasks of the development of a child. They work with the child (ren) to address specific emotional and practical day-to-day needs as they relate to the divorce process. The Child Representative also helps in designing the parenting plans that specifically address the defined needs of the child (ren) as they go through the restructuring of the family.

Child Visitation – Child visitation, often pursuant to a parenting plan, can take a variety of forms or schedules; two of the most common are reasonable visitation, which leaves it up to the parents to specify dates and times, and scheduled visitation, which is a fixed schedule. Visitation arrangements normally include some if not all of the following basic provisions:

  1. Alternate weekend visitation with the non-custodial parent, including “three-day holidays”
  2. Mid-week visitation with the non-custodial parent
  3. Sharing of the child during periods of school recess – winter, spring and summer (often split 50-50)
  4. New Year’s Eve, Easter, Rosh Hashanah, Yom Kippur, Thanksgiving, and Christmas are the kinds of holidays spent with one parent one year, the other parent the next
  5. Mother’s Day is spent with the mother, Father’s Day with the father
  6. Parents alternate years on the child’s birthday
  7. Open and frequent telephone contact by the parent who does not have physical custody of the child
  8. Exchange of a few days of visitation here and there, as mutually agreed, without the need for a modification of the court order

Emergency situations would potentially require the other parent to take temporary physical custody of the child.

Collaborative Attorney – An individual trained in the practice of Collaborative Law to aid couples in the dissolution (divorce) process. The Attorney addresses the legal issues that a couple faces in seeking a divorce. Through problem-solving negotiations that do not include adversarial techniques or tactics, the attorney advises clients concerning applicable law and its effect on them and helps them draft agreements in the spirit of cooperation.

Collaborative Practice – An out of court process for resolving disputes respectfully. A non-adversarial approach, it utilizes specially-trained lawyers, and sometimes other professionals, to help the spouses negotiate a mutually acceptable settlement without using the court to decide any issues. In Collaborative Practice, core elements form the parties’ contractual commitments, which are to:

  • Negotiate a mutually acceptable settlement without having courts decide issues.
  • Maintain open communication and information sharing.
  • Create shared solutions acknowledging the highest priorities of all.

Collaborative Practice can also apply to disputes involving employment law, probate law, construction law, real property law, and other civil law where continuing relationships exist after the conflict has been resolved. In Collaborative Practice, the lawyers and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the Collaborative attorneys and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement.

Contested Divorce – A contested divorce is one in which the husband and wife cannot come to an agreement on one or several issues related to the termination of their marriage. Where the partners cannot come to an agreement, even with the aid of their respective counsels, the couple must then take their issue(s) to a court to be decided.

Conventional Divorce – In a conventional divorce, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional divorce spouses often come to view each other as adversaries, and the divorce may be a battleground. The resulting conflicts take an immense toll on emotions–especially the children’s.

Dissolution – Meaning “to end” or “dissolve”. Often used interchangeably with the word “divorce” as in “dissolution of marriage”. See Divorce.

Divorce Coach – A Divorce coach is a skilled professional, trained to manage a wide variety of emotions and issues that arise during divorce. Collaborative Divorce Coaches are all licensed mental health professionals (for example, psychologists, social workers, marriage and family therapists). Each Coach is experienced in the area of divorce and each Coach receives specialized training in Collaborative Divorce and the Collaborative process. Divorce coaching is not legal advice and not therapy. Divorce coaching is not about placing blame, finding fault or dealing with the past.

Divorce Litigation – Litigation is a legal term meaning ‘carrying out a lawsuit.’  The word ‘litigation’ comes from the Latin word ‘litigatus’ meaning ‘to dispute, quarrel, strive”.  In a divorce, litigation can be very destructive to the parties and their children. The advantages of Collaborative Practice over traditional divorce litigation include:

  • Lower Cost: The collaborative process is generally less costly and time-consuming than litigation.
    Client Involvement: The clients are a vital part of the settlement team and have a greater sense of involvement in the decision making which affects their lives.
  • Supportive Approach: Each client is supported by their lawyer and coach in a manner that still allows the attorneys to work collaboratively with one another in resolving issues.
  • Less Stress: The process is much less fear and anxiety producing than utilizing Court proceedings or the threat of such proceedings. Everyone can focus on settlement without the imminent threat of “going to Court”.
  • Win-Win Climate: The Collaborative process creates a positive climate that produces a more satisfactory outcome for both parties. The possibility actually exists for participants to create a climate that facilitates “win-win” settlements.
  • Speed: The speed of the collaborative process is governed by the parties rather than court calendars.
  • Creativity: The collaborative process encourages creative solutions in resolving issues.
    Clients in Charge: The non-adversarial nature of the collaborative process shifts decision making into the hands of the clients where it belongs, rather than into the hands of a third party (the court).

Divorce Process: Mediation – Many courts require the parties to attempt to mediate their disputes before the matter is submitted to the Court. One exception to this rule may be where domestic abuse has occurred. Mediation may occur between the parties of with attorneys present. Mediation means that the parties visit with a qualified neutral who will attempt to get them to resolve their differences. In mediation, the neutral is not an advocate and will not provide legal advice. Most discussions that occur in mediation are not admissible in Court under the public policy consideration that favors a free exchange of information between the parties to help them resolve their differences.

Financial Counselor – This professional acts as a neutral party who assists both spouses in gathering all the financial information about the couple or family in a supportive and nurturing environment. Each client is encouraged to assist in financial disclosure and documentation of the income, expenses, assets, and debts of the family. The essential shift is from a data focus to a system focus, whereby the financial counselor listens and then helps the clients understand the overall picture created by their particular family’s financial situation. The knowledge gained by the clients through the data collection and documentation can aid each partner in achieving the financial settlement he/she desires.

Financial Planner/Financial Advisor/Estate Planner – Certified professionals who work in the field of accounting, insurance, or investments. They advise clients on how to invest their money to get the best return on their dollar based on their own tolerance for risk. They can facilitate retirement planning, long-term financial investment and life insurance needs.

Grounds for Divorce – Some people don’t want to wait out the period of separation required by their state’s law for a no fault divorce. And in some states, a spouse who proves the other’s fault may receive a greater share of the marital property or more alimony. The traditional fault grounds are:

  • cruelty (inflicting unnecessary emotional or physical pain) — this is the most frequently used ground
  • adultery
  • desertion for a specified length of time
  • confinement in prison for a set number of years, and
  • physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

Interest-Based Negotiation – Also called “interest-based bargaining” or “win-win bargaining,” interest-based negotiation is a negotiation strategy in which parties collaborate to find a “win-win” solution to their dispute. This strategy focuses on developing mutually beneficial agreements based on the interests of the disputants. Interests include the needs, desires, concerns, and fears important to each side. Interest-based negotiation is important because it usually produces more satisfactory outcomes for the parties involved than does positional bargaining.

Marital Settlement Agreement – A Marital Settlement Agreement is a written document that outlines the divorcing spouses’ rights and agreements regarding property, support and children. All forms are signed by both spouses and witnessed by a notary public. The issues that must be resolved by the spouses and outlined in the Marital Settlement Agreement include:

  • Division of assets and other property
  • Repayment of debt and monies owed to creditors
  • Alimony, child support, custody

In a no-fault divorce, the judge will not decide any of these issues for you. These issues are solved voluntarily between the spouses.

Marriage and Family Therapist – A licensed mental health professional (Marriage and Family Therapist, Psychologist or Social Worker) trained in the assessment and treatment of emotional, personality and or relationship difficulties. The therapist may function to help a person move through the transitions of the divorce process. A therapist can help individuals when they are facing emotions that may be overwhelming and interfering with day-to-day functioning. The therapist may also assist a client dealing with underlying core issues that are being triggered and surfacing due to being in the dissolution process.

Mediation – A method of resolving disputes, in which a trained, neutral person (the mediator) helps the parties work out the solution for themselves. The mediator cannot give either party legal advice or be an advocate for either side. If there are lawyers for each party, they may or may not be present at the mediation sessions, but if they are not present, then the parties can consult them between mediation sessions. When there’s an agreement, the mediator may prepare a draft of the settlement terms for review and editing by both parties and their lawyers. If mediation doesn’t result in a settlement, the parties may choose to use their counsel in litigation, if this is what they and their lawyers have agreed.

Mediator – A neutral, impartial person who is trained in negotiation, conflict resolution and communication skills. The mediator does not represent any party or take sides, nor does he/she act as an attorney, judge, coach or therapist. He/she explains the mediation process to the parties, and assists divorcing couples to clarify issues, concerns, interests, needs and values. The mediator brings in and works with various professionals as needs arise.

No Court Divorce -Also called no-court divorce, non-court divorce, or divorce without court, no court divorce refers to the collaborative approach to divorce. See also Collaborative Divorce; Collaborative Practice; Collaborative Process. Rather than turning the decision-making power over to a judge, control of the collaborative solution is kept with the people directly involved in the dispute. All of the parties consent in writing to be part of a respectful process that leads to an out-of-court resolution. The clients retain the power to create a resolution that fits their particular needs and priorities. The focus is on constructive problem-solving rather than adversarial bargaining and court-imposed solutions.

No Fault Divorce – “No fault” divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at “fault.” To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it’s enough to declare that the couple cannot get along (this goes by such names as “incompatibility,” “irreconcilable differences” or “irremediable breakdown of the marriage”). In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.

Paralegal – (Also known as a Legal Document Assistant or LDA) – An individual who helps a couple represent themselves in the dissolution of their marriage in a simple, uncontested divorce situation. An LDA will do all the processing of the paperwork throughout the divorce process. If a couple chooses to go through the mediation or collaborative process, the LDA can also file the appropriate forms to complete the divorce.

Positional Bargaining – This type of negotiation strategy is based on fixed, opposing viewpoints (positions) and tends to result in compromise or no agreement at all (impasse). Often, compromises do not efficiently satisfy the true interests of the disputants. Instead, compromises simply split the difference between the two positions, giving each side half of what they want. Creative, integrative solutions achieved through interest-based negotiation or interest-based bargaining, on the other hand, can potentially give everyone all of what they want.

Pro per – Literally means “do it yourself.” This term is often used in mediation and collaborative law to designate that clients have determined to represent themselves. For example, when filing papers through a Legal Document Assistant, clients sometimes file “Pro Per.”

Separation – The terms “divorce” and “separation’ are often incorrectly used interchangeably. A separation is when marriage partners sever their relationship with the intent of ending the marriage. Separation does not have much legal effect in and of itself.

  • Trial separation. When a couple lives apart for a test period, to decide whether or not to separate permanently, it’s called a trial separation. Even if the spouses don’t get back together, the assets they accumulate and debts they incur during the trial period are usually considered marital property. This type of separation is usually not legally recognized, but is instead a specific period in a couple’s relationship.
  • Living apart. Spouses who no longer reside in the same dwelling are said to be living apart. In some states, living apart without intending to reunite changes the spouses’ property rights. For example, some states consider property accumulated and debts incurred while living apart to be the separate property or debt of the person who accumulated or incurred it. In other states, property is joint unless and until a divorce complaint is filed in court. Also in some states, couples must live apart for a certain period of time before they are permitted to file for a no-fault divorce.
  • Permanent separation. When a couple decides to permanently split up, it’s often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. In most states, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them. However, debts that happen after separation and before divorce are usually joint debts if they are incurred for certain necessities, such as to provide for the children or maintain the marital home. Again, a couple’s decision to permanently separate may not be considered a legal one unless one party files for legal separation instead of divorce.
  • Legal separation. A legal separation results when the parties separate and a court rules on the division of property, alimony, child support, custody, and visitation — but does not grant a divorce. This isn’t very common, but there are situations where spouses don’t want to divorce for religious, financial, or personal reasons, but do want the certainty of a court order that says they’re separated and addresses all the same issues that would be decided in a divorce.

The money awarded for support of the spouse and children under these circumstances is often called separate maintenance (as opposed to alimony and child support). In some states, separate maintenance can be obtained with a motion pendente lite, or a motion “pending the litigation.” Usually a lawyer files this motion. These motions set the tone for what may be awarded in a future divorce judgment.

Uncontested divorce – An uncontested divorce is one in which all issues have been agreed upon by the parties. The parties reduce their agreement to writing and it is presented to a Judge at the final hearing. An uncontested divorce can be achieved by the parties working on their own or through mediators and collaborative lawyers as well as lawyers working in the traditional context. Often, cases which are contested on one or more issues end up being uncontested when the parties settle after a period of adversarial litigation. In fact, the vast majority of divorce cases are settled by agreement. But what occurs in the course of litigation prior to the settlement can be damaging to the family relationships and resources.

Zealous advocacy – In the zealous advocacy model, lawyers are taught to argue for the best result they can get for a client, without regard to how it effects or damages others. The adversary system is revered as an “engine” for discovering the truth. In theory, if each adversarial attorney pushes as hard as he can for his client, the truth will rise from the fray and justice will result. This model may be necessary and effective in criminal law cases, for instance, but in family law cases, zealous advocacy can escalate hostilities and the family can be injured as a result.