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A Guide to Legal Terms in a Divorce


In a divorce situation, you will frequently hear terms that are completely new to you. This glossary lists many of those terms sequentially--that is, in the order in which they become relevant during the divorce process--rather than alphabetically.


Petitioner and Respondent


In a divorce action, the person who initiates the divorce is called the petitioner. The other spouse is called the respondent.


Summons


The court document in a civil case (including a divorce) that notifies a party that a legal action has been filed against him or her and requires that they respond within a certain number of days. If there is no response, a judgment may be entered against him or her.


Financial Disclosure Statement


A listing of all of that party's income and expenditures, as well as debts and assets. Each party is required by the court to complete this document and provide copies to the court and the opposing party before the divorce is finalized.


Custody


The legal right to make certain major decisions regarding a child, including choice of school and religion, authorization for non-emergency medical care, joining the military before age 18 and marrying before age 18. Wisconsin is a Joint Custody State, meaning that this is the presumption in a case. Custody may be related to, but is not the same thing as Physical Placement.


Physical Placement


The allocation of a child's time between the two parents. It may be related to, but is not the same thing as Custody. For example, Joint Custody does not necessarily result in equal placement.


Order to Show Cause


A hearing in front of the Family Court Commissioner or Judge where the party requesting the hearing is asking for the Court to issue an order for custody, placement, support, etc. that will last for the duration of the divorce process. (Also known as a Temporary Hearing).


Temporary Order


The court order that is a result of the Temporary Hearing. This order may include temporary provisions for payment of the parties' debts, custody and placement of the children, and allocation of property until the final divorce hearing, at which time these provisions may change.


Mediation


Mediation is a cooperative process involving you, your spouse and a mediator. The purpose of mediation is to help the two of you, by applying communication and dispute resolution skills, define and resolve your disagreements, with the best interest of the child as the paramount consideration.


Motion


A motion is a written request that the court make an order. An order is the court’s ruling and both parties must obey it. A hearing will be held to determine whether or not the motion should be granted. It is most often used shortly after the divorce action is commenced for the purpose of obtaining a temporary order regarding custody, visitation, support and other matters. It may also be used after a divorce to obtain a change in a previous court order or judgment or to commence contempt proceedings for failure of the other party to abide by previous orders.


Deposition


A deposition is testimony under oath. The person being deposed will be asked questions by the opposing attorney and in some cases by his or her own attorney, and the questions and the answers to them will be recorded by an official court reporter. There is little legal difference between testimony at a deposition and testimony in the courtroom, except that at the deposition there is no judge ruling over the matters as they arise. The judge may do so later.


If we receive notice that your deposition will be taken by the opposing attorney, we will provide you with more detailed information about depositions at that time.


Interrogatories


Interrogatories are written questions directed to the other party regarding finances or other relevant information. They are used in preparation for trial to obtain information not otherwise available. Interrogatories must be answered under oath by the party to whom they are directed.


Subpoena


A subpoena is a document authorized by the court requiring a witness to appear and give testimony at the hearing or trial. The witness may be one of the parties to the action or a third party.


Demand to Produce


A party may request the opposing party to produce documents in the opposing party’s possession or control that are relevant to the issues of the action, such as tax returns, bank statements, financial records, etc. Both a notice of an oral deposition and a subpoena can include a provision for production of documents.


Subpoena Duces Tecum


A party may also require a person who is being deposed to bring specified documents to that deposition.


Agreement or Stipulation


A stipulation is a formal written agreement between the parties (and their attorneys). It can cover any subject. Stipulations are used by the parties to agree on the provisions of a final judgment. If there is a stipulation or agreement regarding terms of the final judgment, the divorce is considered to be a "default" or "uncontested" divorce. A default divorces in which there is a stipulation or agreement is less complicated, less costly and scheduled more quickly than a contested divorce. A contested divorce requires a trial on the issues upon which the parties can’t agree. The court will then make the decision on those contested issues.


Findings of Fact, Conclusions of Law, and Judgment


The court makes formal findings of fact and conclusions of law and grants a judgment of divorce in a formal written document usually prepared by the petitioner’s attorney and signed by the judge or Family Court Commissioner. This is the legal document that grants a divorce, property division, support and maintenance, or such other legal relief as the court may order at the final hearing.


Child Support


These are court-ordered payments for the reasonable or necessary support of a child. The payments are expressed as a percentage of income or as a fixed amount. They are not tax deductible to the payer (the person making the payment) nor reportable as income by the custodial parent, i.e., the parent with whom the children primarily live.


Periods of Physical Placement


This is the term used to indicate when the non-custodial parent (the person with whom the children do not primarily live) has the children staying with him/her. It was formerly called visitation.


Maintenance


This is a limited or indefinite support payment for a former spouse, earlier known as alimony. These payments are tax deductible to the payer (the person making the payment) and must be reported as income by the payee (the person receiving the payment) if they are made in connection with a divorce or separation instrument and meet the tax rules.


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