Remember that Friends episode where Joey bought an encyclopedia volume because he couldn’t keep up a conversation with the other friends? He found himself nodding along hoping no one would catch on that he was completely clueless. Then he got volume V of an encyclopedia and was a regular Charlie Rose for a few seconds until the conversation moved onto something not V-related.
Don’t be Joey when it comes to your divorce. Use the handy guide below to demystify all the legalese heading your way. Also, don’t be Joey when it comes to the rest of your life either. Would it kill you to pick up a newspaper once in awhile?
Abandonment: When one spouse peaces out for at least one year without consent or justification. This concept used to have some legal relevance. Now that New York is a “no fault” state nobody cares. You can tell how old this particular law is by the fact it includes the statement that the spouse must be absent for a period of twelve months “with no tidings.”
Adultery: You probably know this one. It’s cheating. The cheat-cheat-cheating.
Alimony: The bucks. That sweet dough or financial support one spouse is required to provide the other after separation or divorce. Usually tax deductible by the individual paying it and taxable income to the person receiving it. In New York this term is no longer used and has been replaced by the term “Maintenance.” It still costs the same.
Attorney’s Fees: The cold hard cash you give me. Take some small comfort in the fact that I’m passing most of it along to my own ex-wife.
Child Support: Money paid by one spouse to the other to cover a child’s expenses. Child support generally covers the “shelter expenses” of the child: food, clothing, contribution to housing. There can be additional funds awarded for things like unreimbursed medical expenses and educational expenses but “child support” covers most stuff so if Junior wants a new lacrosse stick or prom dress it’s covered under “child support” unless the person paying is feeling generous.
Constructive Abandonment: When one spouse refuses to have sex with the other spouse for a period of at least a year, and without justification. That’s right folks: you are legally required, in New York State, to have sex with your spouse at least one time per year. Mark it on the calendar. Perhaps have it coincide with changing the clocks for Daylight Savings Time? That way you can have sex, change the clocks and the battery in the fire detectors and, for at least one night, get an extra hour of sleep knowing that your marriage and home are both especially “Fireproof” for that night (Yes…that was a deliberate Kirk Cameron reference).
Cruel and Inhuman Treatment: Cruelty (physical or emotional) committed by the Defendant against the Plaintiff that makes living together unsafe or otherwise impossible. Forcing a spouse to watch James Franco’s Palo Alto is not considered cruel and inhuman treatment in any state, though it should be.
Defendant or Respondent: The person who has a divorce or Family Court action filed against them. I can usually see them coming as they walk into my office holding papers in their hand and saying “I meant to come see you sooner….”
Earning Capacity: A person’s ability to earn money. Things to consider: education, training, job experience, million dollar Hollywood smile, sick dance moves.
Emancipation: How teen stars divorce their momagers to get full control of their sitcom money. Also when a child under 21 marries, enlists in the military, or is financially self sufficient thereby making them no longer eligible for child support.
Equitable Distribution – How marital property is divided. Equitable doesn’t have to mean 50/50.
Family Court: Where you’ll be hanging out to get custody, child support and visitation ironed out. Ask around to find out where the good vending machines are. There’s always one good one and it’s never easy to find. Avoid the water fountains. Spring for the bottled water from the machines. Trust me on this one.
Jurisdiction: The state where your divorce takes place. Usually residing someplace for six months or more gives that state jurisdiction over the divorce. Whether or not that state is the right “venue” is another question entirely.
Legal Custody: The legal responsibility and right to make decisions for a child under 18. I’m not talking about where the child should have dinner tonight (your ex gets to make those decisions during his or her visitation/parenting time). I’m talking about “major decisions” such as what religion will the child be, will they attend public or private school, can they have elective cosmetic surgery? Some of these decisions have financial ramifications.
Marital Property: All cars, TVs, furniture, jazz shoes and any other stuff acquired by the couple from the date of marriage to the beginning of the divorce process. Debt can also be considered property so remember that gets whacked up too. Some things, such as an inheritance or proceeds from a personal injury award may not count as Marital Property and are considered Separate Property. Key point: the fact that something is in your “sole name” may not protect that asset from division.
Mediation: A rap sesh between a couple and a mediator where the couple tries to hammer out their divorce issues and come to some sort of agreement. Sort of like couples therapy but the couple is not looking to work things out to stay together.
No Fault Divorce: Neither spouse has to prove the other did something wrong. No one has to give a reason for wanting the divorce. The couple just has to stand in front of a darkened mirror and chant “No Fault Divorce” three times and the judge appears in the mirror covered in blood wearing a yellowing bridal veil and okays it. Kidding about that last bit.
Order of Protection: An order from the court that demands a person stop harassing another person, or orders them to stay away from a certain place such as a home, school or office. This can be obtained in Family Court or Justice Court (or both).
Palimony: Like Alimony but for pals who weren’t legally married, but were living together in a marriage-like relationship. This no longer exists in New York State. Please stop asking.
Parenting Time: The new term for visitation. Also called “custodial access time” or “access time” the idea being that you don’t “visit” with your child. This is intended to make somebody feel better about only seeing their child on alternate Wednesdays.
Plaintiff or Petitioner: The spouse who files for divorce. The individual who incepts the action. The only real benefit to being the “first to file” is that you get to go first if the case goes to trial (this isn’t always a good thing) and you have to pay the filing fees (currently $385.00).
Physical Custody – You can reach out and pinch your cute kid’s cheeks because they are with you, in your physical custody. The child most likely lives with you and your home is considered the kid’s “primary residence.” This is sometimes a very lucrative arrangement as having “primary physical custody” usually results in receiving child support.
Pro Se: Going solo and representing yourself sans lawyer. Also known as having little or no self preservative instincts. People ask me all the time (usually at a consultation) “Can’t I represent myself?” and the answer is “Yes.” You can also do your own dental work. All you need is a drill, a high pain tolerance and an abundance of tenacity. Good luck with that.
Separate Property: Stuff that is out of bounds to split up, meaning it belongs solely to only one spouse. This could be premarital property that was never “commingled” with marital property. This could be stuff you got after the filing of the divorce action.
Separation Agreement: The written agreement that spells out all the specifics regarding your divorce and the arrangements the former couple has agreed to. This is how the overwhelming majority of cases end when people finally realize that Judges don’t possess any particular wisdom on any of these issues. If your lawyers divide your assets – they do it with a scalpel. If a Judge does it – they do it with a chainsaw.
Subpoena: Tricky to spell but easy to explain. It’s the court’s way of telling you (or a witness in your case) when and where to be to testify, or it’s way of asking to provide certain documents. If you get served with one please call me. If your business partner gets served with one please call me on my cell phone as soon as possible.
Uncontested Divorce: First a magical alignment of planets, heavens and earth occurs. Then Glinda the Good Witch bubbles down from the sky with a red wagon full of golden retriever puppies. She confirms that both parties are totally cool with every divorce related issue including spousal support, custody and splitting property. The couple then pets the puppies and the divorce is officially granted and sealed with puppy kisses. Just kidding, planets don’t have to align and Glinda can take the day off. The puppies are optional, though strongly recommended.
Uncontested divorces are very common and totally doable, so keep the faith. This stuff isn’t rocket science but it does require a certain level of knowledge and experience. Call me sooner rather than later. Trust me. I’ll be gentle.
Respectfully,
James J. Sexton
