Legal Glossary | Tracey A. Bloodsaw

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Legal Glossary

Glossary - A | B | C | D | E | F | G | H | I | J | L | M | N | O | P | Q | R | S | T | U | V | W

Abandonment - when a parent has no contact with his/her child for a period of six months or more.

ACD ( Adjournment in Contemplation of Dismissal) - for a period of time, usually six or twelve months, the parent will be monitored to see that s/he takes care of the child properly during that time, and does everything the court has told him or her to do. The charges will automatically be dismissed against the parent at the end of the time period if there are no problems and the parent has done everything s/he was supposed to.

ACS (Administration for Children's Services) - the New York City agency which investigates child abuse, takes parents to Family Court, and runs the foster care system. Previous names for ACS are: the Child Welfare Administration (CWA); Special Services for Children (SSC), and; the Bureau of Child Welfare (BCW). Sometimes judges, lawyers, and caseworkers still use the old names.

Acknowledgement of paternity - a legal document that both parties sign at the birth of a child, that the male named is the father. The document is signed and acknowledged, in the presences of witnesses and then filed with the Department of Social Services.

Acquit - to find not guilty by judge or jury.

Action - a legal case, lawsuit.

Adjournment - postponement. The case is rescheduled for a different date.

Adjudication - a judgment or decree after a legal case was heard in court.

Admissible evidence - evidence which may be legally used in a court.

Adultery - when one spouse has sexual intercourse with a third party. In some states and provinces this is considered grounds for divorce.

Adversary - the opposition or the opposing party in a lawsuit. In a divorce, the litigant or adversary will probably be your spouse.

Adversary system - the system of trial practice in the U.S. and some other countries, in which each of the opposing, or adversary, parties has an opportunity to present and establish its opposing arguments in court.

Affidavit - a voluntary written statement of facts or charges made under oath. A written declaration or statement sworn to and affirmed by an officer of the court, such as a notary public or some other person authorized to take the statement, who has authority to administer such oath. Affidavit of service, is a affirmed to by a notary that a person was "served" with a legal document.

Alimony (maintenance) - money or other financial support awarded to a spouse in a divorce action for his or her separate support. lt is usually awarded only where one spouse has been dependent on the other or has less earning power than the other and for a temporary period of time. Also referred to as "spousal support".

Allegation - the assertion, declaration, or statement of a party to an action, made in a pleading, discovery, etc. setting out what his/her version of the facts are.

Allocution - a series of questions that the judge asks when a parent admits to neglecting or abusing a child. The judge must make sure that the parent is acting voluntarily, has not been forced to take the plea, and understands the consequences of pleading guilty.

Alternative Dispute Resolution (ADR) - specific methods, including mediation and arbitration, with which couples can obtain a divorce settlement without a trial.

Amicus curiae (a-mi'kis' ku ri -i) - a friend of the court; one who interposes and volunteers information upon some matter of law.

Ancillary Relief - In an action for divorce, additional or other help asked for beyond a judgment of divorce, such as maintenance (formerly called "alimony") payments, division of property, responsibility for debts (bills), child support, etc.

Annulment - a court declaration that a marriage is invalid or nonexistent. Courts annul marriages where fraud, misrepresentation or bigamy have occurred. It means that the marriage never occurred legally.

Answer - a pleading interposed by the defendant, where he/she tries to dispute the plaintiff's right to recover. The pleading typically controverts the facts alleged by the plaintiff.

Antenuptial agreement - a legal contract signed by two people prior to marriage which states limitations to spouse's rights to property, support, or inheritance if the marriage ends in divorce.

Appeal - the process by which a more senior court or person reviews a decision of a subordinate court or person. The request that that court or person review the judgment, decision, or order of a lower court and set it aside, reverse it or modify it.

Appearance - when a person or party formally submits him/herself to the jurisdiction of court to answer or defend charges brought against him/her.

Appellate court - a court which hears appeals and reviews lower court decisions, generally on the lower court record only.

Apportion - to divide and assign according to a definite rule. The division is not necessarily equal but is fair according to the respective interests of the parties involved.

Appraisal - the procedure for determining the fair market value of an asset for equitable distribution in divorce.

Arbitration - a alternative dispute resolution method by which an independent, neutral third person (arbitrator) is appointed to hear and consider the merits of the dispute and renders a final and binding decision called an award.

Arraignment - when a defendant is brought before the court, in a criminal action, to answer the charges brought against him/her, to enter a plea and to determine bail status.

Arrearages - a term used to describe the amount of money less the court order amount of Support. If a spouse does not pay the full amount of support, the missing amount is considered the arrearages.

Assess - To figure out a sum of money and charge it to another.

Assets - cash, property and investments along with anything else that may be of value to a individual or business.

Assigned counsel - an attorney, appointed by the court, at no charge, to defend a person accused of a crime.

Assignment - to award a debt or benefits to another person. For example, a husband who does not pay child support can be forced to assign his wages to the court for his children.

Asylum - the granting of protection against return to a refugee; can lead to lawful permanent resident status and eventually to citizenship.

Attachment - the process by which the court seizes the property of a debtor.

Attorney-client privilege - ithe client's privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between him- or herself and his/her attorney. The privilege belongs to the client and not the attorney and thus the client can waive the privilege and the attorney is required to reveal the nature of such communication. This is a law of evidence.

Attorney general (AG) - head of the state agency responsible for prosecuting violations of state laws. The AG's office is the State's law firm for civil matters. The AG's represent the State, either defending the State, or bringing lawsuits on behalf of the State.

Attorney of record - attorney whose name appears in the permanent records or files of a case as the attorney who represents either party in the case.

Award - a decision made by a court to compensate a person for something.

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Bail - cash or other security placed on deposit with the court, in exchange for the release of an arrested or imprisoned person and to guarantee his reappearance before the court on future appearances.

Bail bond - a financial obligation signed by the accused, provided by a state licensed surety, to ensure that the accused appears in court on all scheduled dates.

Bench warrant - an order issued by the court, ("from the bench") for the arrest of a person, usually to appear before the court.

Best interest of the child - a discretionary legal standard that pertains to support, visitation and custody.

Bigamy - a criminal offense committed when one spouse enters a marriage when the previous marriage has not been terminated.

Bill of particulars - a particularized and detailed statement of facts previously alleged by a party in his/her pleadings.

Bind over - to hold on bail for trial.

Book - to enter into police records a suspect's name and the crime for which he was arrested.

Brief - a written or printed document prepared by counsel to file in court, usually setting forth both facts and law in support of his case.

Burden of proof - the obligation or duty of proving a fact or facts asserted that is/are in dispute. This is a law of evidence.

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Caption - The title of a pleading, motion, or other court filing showing the names of the Plaintiff and Defendant, the name of the court, the court part and the Index Number.

Cause of Action - A group of facts giving rise to one or more legal reasons for suing; a factual situation that entitles one person to obtain a decision from the court against the other person if proven in court.

Cause - a lawsuit, litigation or actionl.

Certiorari (ser'shi-o-ra'ri) - an order commanding judges or officers of a lower court to certify the record of a case for judicial review by an appellate court.

Challenge for cause - an objection to the qualifications of a juror for which a reason must given, usually on grounds of the existence of a bias which may affect the verdict.

Chambers - private office or room of a judge.

Change of venue - the removal of a suit begun in one county or district to another, for trial, or from one court to another in the same county or district.

Charge to the jury - the judge's instructions to the jury at the end of the closing arguments of each side. The judge speaks directly to the jury before the are to render a verdict, in which he sums up the case, instructs the jury as to the rules of law that apply and the rules of procedure that apply.

Chattel - personal property.

Child cupport - Money paid by one parent to another for a child's expenses after separation and/or divorce.

Child Support Standards Act (CSSA) - The Law that determines child support obligation. Charts are available to assist.

Circumstantial evidence - all evidence that is not direct; the evidence presented to the court or jury where an inference must be drawn from the circumstances.

Citation - an order from a court requiring a court appearance.

Clear title - transferring ownership of an asset without any encumbrances, obstructions or burdens that present any reasonable question of law or fact.

Clerk - the court official who keeps court records and files.

Cohabitation - two people living together. This can be grounds for terminating support in some states and provinces. Often time a period of cohabitation is written.

COLA (cost of living adjustment) - an adjustment in child support obligation made by the Office of Child Support Enforcement, every three years, based on the increase in the cost of living.

Commingle - When one mixes separate funds or properties into a common fund or bank account.

Commit - to lawfully send a person to prison, an asylum, workhouse, or reformatory by an authority permitted to do so.

Common law - law which derives its authority solely from usages and customs of the court's jurisdiction or from the judgment and decrees of courts.

Commutation - the change of a punishment or sentence from a greater degree to a lesser degree, as from death to life imprisonment.

Comparative negligence - the doctrine by which acts of the opposing parties are compared to determine the proportion of liability which each shares for the injury which is the basis of the action.

Competency - the presence of those characteristics which render a witness legally fit and qualified to give testimony. This is a law of evidence.

Competent - able to make decisions. The court may decide if a person is competent or incompetent. If someone is incompetent, the court may appoint a legal guardian.

Complaint - the first or initial pleading on the part of the complainant or plaintiff, in an action, which sets out the allegations for the suit.

Concurrent sentence - sentences for more than one crime in which the time of each is to be served at the same time instead of successively.

Conditional discharge - as part of a sentence of a criminal case, the criminal charges will be dismissed on the completion of certain conditions after one year. Conditions include completion of community, participation in programs, refraining from getting arrested, paying fines, etc.

Conflict of interest - when any professional is not capable of performing services due to previous relationships or present relationships and/or a situation where confidentiality can be broken.

Consent - free and willing agreement. (eg., A "consent order" is made when both parties agree to the terms of the order and then the judge signs off on it.)

Consortium - The services of a spouse. Services include household tasks one spouse performs for another and/or in addition to sexual services. (Term is used in law suits for "loss of consortium" claims where one spouse loses the services of the other as a result of an accident and can sue for damages.

Constructive abandonment - the refusal of one spouse to engage in sexual relations with the other spouse. In some states this is considered grounds for divorce if lasting for a certain length of time.

Contempt of court - any act calculated to embarrass, hinder or obstruct a court in the administration of justice, or calculated to lessen its authority or dignity. There is direct contempt which is those committed in the immediate presence of the court; and indirect contempt which is the term used with reference to the failure or refusal to obey a lawful order.

Contested divorce - a divorce where at least one issue has not been settled before court. The court must decide the issue or issues.

Continuance - the postponing (rescheduling for later) of a court hearing. If you ask a judge for a continuance, s/he may or may not give it to you.

Contingent fee - an agreement which specifies that the attorney does not get paid unless the client wins the case. This type of arrangement is generally not allowed in divorce and custody cases.

Contract - an exchange of oral or written promises between two or more parties to do or not do a particular thing, which is binding on each party and thus enforceable by law.

Contributory negligence - a doctrine which prohibits recovery of damages by a plaintiff whose own behavior contributed even slightly to the event which caused the plaintiff's injuries, as distinguished from comparative negligence.

Convey - to give, sell, or transfer to another person.

Corpus delicti (kor'pus de-lik'ti) - the object or thing upon which a crime has been committed, i.e., the body of a murdered person, the charred shell of a burned house.

Corroborate - to prove a statement, argument, etc. with confirming facts or evidence.

Corroborating evidence - additional evidence which tends to strengthen or confirm evidence already provided.

Counterclaim - a claim presented by a defendant in opposition to the claim of a plaintiff, usually included in the answer.

Court officer - an officer of the court who protects the judge; is in charge of the accused person while he is in the courtroom; and looks after the jurors.

Court reporter - a legal stenographer who records what happens during official court proceedings.

Courts of record - those whose proceedings are permanently recorded, by a mechanical recorder or court reporter, and which have the power to fine or imprison for contempt. Courts not of record are those of lesser authority whose proceedings are not permanently recorded.

Cross-examination - the questioning of a witness in a trial, or a deposition, by the party opposed to the one who produced the witness, with the purpose to impeach him/her.

Custody - the legal right and responsibility a parent has for the care of a minor child. There is joint custody, physical custody, residential custody, split or shared custody and sole custody.

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Damages - compensation recoverable in court by one who has suffered loss, detriment or injury to his person, property or rights due to the unlawful acts or negligence of others.

Deed - a written, legal instrument that conveys an estate or interest in real property when it is executed and delivered. There are numerous types of deeds.

De novo (de no'vo) - a new, afresh. A "trial de novo" is retrial.

Declaratory judgment - one which declares the rights of the parties or expresses the opinion of the court on a question of law, without necessarily ordering anything to be done.

Decree - a decision or order or judgment of the court. A final decree is one which fully and finally disposes of the litigation; an interlocutory decree is a provisional or preliminary decree which is not final.

Default - a "default" in an action of law occurs when a defendant fails to plead or appear within the time allowed or fails to appear at the trial.

Default judgment - a judgment made against someone who did not defend himself/herself against a claim.

Defendant - the individual who is being sued or who is charged with a crime.

Defraud - to cheat or steal by false representation.

Deliberation - when the jury is given the case upon conclusion of trial, to determine the liability and/or damages in a civil case or the guilt or innocence and/or the sentence of a defendant in a criminal case.

Delinquent - person under 16 years old who has commited a crime and has been found declared such after a fact-finding (trial).

Demur (de mer') - to file a pleading (called "a demurrer") admitting the truth of the facts in the complaint, or answer, but contending they are legally insufficient.

Deposition - as part of the discovery or disclosure of evidence process, the testimony of a witness taken in the presence of the parties and attorneys only and recorded by a court reporter.

Depreciation - in reference to appraising, a loss in property value from any cause including deterioration and obsolescence. In accounting, an allowance made against the loss in value of an asset for a defined purpose and computed using a specified method.

Direct evidence - proof of facts by witnesses who saw acts done or heard words spoken, as distinguished from circumstantial evidence, which is considered indirect evidence.

Direct examination - the first interrogation of a witness by the party on whose behalf he/she is called.

Directed verdict - an instruction by the judge to the jury to return a specific verdict.

Discovery - the part of the action whereby additional information and facts is sought and provided by either party in the case.

Dismissal without prejudice - where a case is dismissed by the court but permits the complainant to sue again on the same cause of action, while dismissal "with prejudice" bars the right to bring or maintain an action on the same claim or cause.

Disposition - resolution, outcome of a case, matter, etc.

Dispositional hearing - a hearing after a judge has made a finding of child abuse or neglect, where the judge decides what should happen to the children. The judge's options include sending the children home with the parent, placing the children in foster care for up to 12 months, or placing them with a relative.

Dissent - a term commonly used to denote the disagreement of one or more judges of a court with the decision of the majority.

Dissipation - The wasteful use of an asset for an illegal or inequitable purpose, such as a spouse's use of marital property for personal benefit when a divorce is imminent. It is intended to deprive the other spouse of the use and enjoyment of the asset.

Divorce - a final decree required to legally terminate a valid marriage.

Docket - the calendar schedule of the court.

Domicile - the place where a person lives and will return if temporarily absent.

Double jeopardy - constitutional prohibition against more than one prosecution for the same crime, transaction or omission.

Dower - a wife's common law right to inherit from her husband.

Due process - the guarantee that every man has an opportunity to be heard and has the protection of a fair trial.

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Earning Capacity - A person's ability or power to earn money, given the person's talent, skills, training and experience.

Egregious - Extremely or remarkably bad; shocking.

Emancipation - the process by which a minor child is declared to be an "adult" by a court of law. The child must petition the court for this right. The age at which you can file for emancipation is set by law in each state.

Enjoin - to require a person, by writ of injunction from a court to refrain from engaging or continuing certain acts, behavior or transactions.

Entrapment - the act of officers or agents of a government in inducing a person to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him.

Equity - fairness.

Equitable Distribution - the division of property acquired during the marriage.

Escrow (es'kro~) - a writing, deed, fund or object delivered by one person to another to be held until specified acts are performed or certain conditions are met, and then to be disposed of as directed under the terms of the escrow.

Estate - a right or interest in property or the property of a deceased person.

Estoppel (es-top'el) - a person's own act, or acceptance of facts, which preclude his later making claims to the contrary on the basis that another relied on those acts or acceptance of facts.

Et al. - abbreviation of et alii, meaning "and others."

Examination - the questioning of a witness by a lawyer at a trial or deposition. When the lawyer calls a witness for their case and questions the witness, the questioning is called direct examination. When the opposing lawyer questions the same witness, the questioning is called cross-examination.

Exception - a formal objection to an action of the court, during the trial of a case, in refusing a request or overruling an objection; implying that the party excepting does not acquiesce in the decision of the court, but will seek to procure its reversal.

Exclusionary rule - a court created rule of evidence which makes illegally acquired evidence inadmissible.

Exhibit - a document or other article produced and exhibited to a court during a trial or hearing usually to be used as part of testimony by one of the parties.

Ex parte (ex par'te) - by or for one party; done for, in behalf of, or on the application of, one party only, without notice to the other.

Expert evidence - testimony given in relation to some scientific, technical, or professional matter by experts, i.e., persons qualified to speak authoritatively by reason of their special training, skill, or familiarity with the subject.

Ex post facto (ex post fak'to) - after the fact; an act or fact, occurring after some previous act or fact, and relating thereto.

Expunge - to cancel, wipe out.

Extenuating circumstances - circumstances which render a crime less aggravated, heinous, or reprehensible than it would otherwise be.

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Fact-finding hearing - a trial where the judge determines whether the parent abused or neglected the children.

False arrest - any unlawful physical restraint of another person, in prison or elsewhere.

False imprisonment - the unlawful detainment of another person. This happens when one person deprives another of freedom of movement by holding that person in a confined space or by physical restraint.

False pretenses - misrepresentation in order to obtain another's money or goods.

Felony - a crime more serious than a misdemeanor, generally, punishable by death or imprisonment in excess of one year.

Fiduciary - a trustee; one who has the duty to act primarily for the benefit of another with respect to the subject matter of the trust.

Forensics - a psychiatric or psychological evaluation by the Family Court's Mental Health Services. Family Court judges sometimes order forensics after they make findings of neglect or abuse. Sometimes this is called an MHS.

Foundation - the evidence that must be presented before asking certain questions or offering documentary evidence on trial.

Fraud - an intentional perversion of truth; deceitful practice or device resorted to with intent to deprive another of property or other right, or in some manner to do him injury.

Frivolous - a pleading or claim is frivolous if no rational or reasonable arguments can be made to support the claim, and its purpose was to delay the court or embarass the opponent.

Fruit of the poisonous tree - the doctrine that evidence seized illegally or through the use of other illegally obtained sources is considered "tainted" and is therefore inadmissible at trial against a suspect. The effect of this doctrine is that an unlawful search taints not only evidence seized directly at the search, but also facts discovered through some further process initiated as a result of the illegal search.

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Garnishment - a support enforcement technique in which the support payment is automatically deducted from the supporters paycheck and delivered to the spouse. This is an enforcement method of paying support.

Good cause - justifiable and explained reason for delay, failure to act or do something, etc.

Good faith - absence of intent to commit fraud.

Goodwill - the value of a business that is beyond the market value of any tangible assets. It includes reputation, prestige, and company name.

Grand jury - a group of 23 citizens who decide whether there is "reasonable cause" to believe the defendant has committed a crime and whether an indictment should be issued.

Grounds - the permitted and legal basis for a divorce.

Guardian - a person named as the legal custodian of a minor or over the property of a minor, incapicated person.

Guardian ad litem (ad li'tem) - a person appointed by a court to look after the interests of an infant or incompetent whose property is involved in litigation.

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Habeas Corpus (ha be-as kor'pus) - "You have the body." The name given a variety of writs whose object is to bring a person before a court or judge. In the most common usage, it is directed to the official or person detaining another, commanding him to produce the body of the prisoner or person detained so the court may determine if such person has been denied his liberty without due process of the law.

Harmless error - in appellate practice, an error committed by a lower court during a trial, but not prejudicial to the rights of the party and for which the court will not reverse the judgment.

Hearing - a trial. Sometimes the hearing is about one part of the case, instead of the whole case.

Hearsay - evidence provided that is not elicited from the personal knowledge of the witness testifying.

Hostile witness - a witness who is subject to cross-examination by the party who called him/her to testify, as opposed to cross-examination by the party who did not call him/her to testify, because of his evident antagonism toward that party as exhibited in his direct examination.

Hypothetical question - a combination of facts and circumstances, assumed or proved, stated in such a form as to constitute a coherent state of facts upon which the opinion of an expert can be asked by way of evidence in a trial.

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I and R (Investigation and Report) - after a Family Court judge makes a finding of child abuse or neglect, an ACS caseworker must make a new investigation, including a recommendation about what should happen to the children.

Impeachment of witness - an attack on the credibility of a witness, as by the testimony of other witnesses or evidence of prior bad conduct or criminal convictions.

Implied contract - A contract in which the promise made by the obligor is not express, i.e. as in a writing, but inferred by his conduct or implied in law.

Impound - to seize and take into custody of the law or of a court.

Imputed negligence - negligence which is not directly attributable to the person himself, but which is the negligence of a person who is in privity (has a particular legal relationship) with him, and with whose fault he is chargeable.

Inadmissible - evidence that under the established rules of evidence, cannot be admitted or received.

In camera (in kam'e-ra) - in chambers; in private.

Indeterminate sentence - an indefinite sentence of "not less than" and "not more than" so many years, the exact term to be served being afterwards determined by parole authorities within the minimum and maximum limits set by the court or by statute.

Index Number - The unique number assigned by the County Clerk's office to every action or proceeding commenced within the New York State Supreme Court. The number is used to identify a case in that court, and should be indicated on all papers served on the parties and filed with the court. The number is either: (a) purchased; or (b) obtained after a Poor Person Application is filed and approved by the court.

Indictment - an accusation in writing that was presented to and found by a grand jury, charging that a person charged with the crime has done some act, or been guilty of some omission, which, by law, is a felony crime.

Information - an accusation of some criminal offense (typically misdemeanors) supported by the victim or other person with personal knowledge of the offense, but which is presented by a competent public officer instead of a grand jury.

Injunction - a mandatory or prohibitive order issued by a court.

Instruction - a direction given by the judge to the jury concerning the law of the case.

Interlocutory - provisional; temporary; not final. Refers to orders and decrees of a court.

Interrogatories - written questions propounded by one party and served on an adversary, who must provide written answers under oath.

Intestate - one who dies without leaving a will.

Irrelevant - evidence not relating or applicable to the matter in issue; not supporting or having any bearing on the issue in question.

Interrogatory - written questions asked by one party of an opposing party, who must answer them in writing under oath.

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Joint tenancy - a form of joint ownership in, in property, which each joint owner has an equal share.

Judge - the person who is appointed to decide cases and to make sure that legal procedures are followed in the courtroom.

Judgment - the ruling or order of the court.

Judgment of divorce - the formal and final written document that states that a man and a woman are divorced. Also referred as a Divorce Decree or Decree of Dissolution.

Jurisdiction - A range of authority or control especially to interpret and apply the law. The power of a court to hear and determine a particular case. The court's authority to judge over a situation is usually acquired in one of three ways: over acts committed in a defined territory (e.g. the jurisdiction of the Court of Appeals of New York State is limited to acts committed or originating in New York State), over certain types of cases (the jurisdiction of a bankruptcy court is limited to bankruptcy cases), or over certain persons (a military court has jurisdiction limited to actions of military personnel).

Jury - a certain number of persons, selected according to law, and sworn to inquire into certain matters of fact, and declare the truth upon evidence laid before them b y rendering a verdict.

Jury, petit - the ordinary jury of 12 (or fewer) persons for the trial of a civil or criminal case.

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Leading question - one which instructs a witness how to answer or puts into his mouth words to be echoed back; one which suggests to the witness the answer desired which is rohibited on direct examination.

Lease - a written document in which the rights to use an occupancy of land or structures are transferred by the owner to another for a specific period of time in return for a specified rent.

Leased fee estate - an ownership interest held by a landlord with the right of use and occupancy conveyed by lease to others: usually consists of the right to receive rent and the right to repossession at the termination of the lease.

Leasehold estate - the right to use and occupy real estate for a stated term and under certain conditions: conveyed by a lease.

Liable - legally responsible.

Lien - an encumbrance put on a property owned by a judgment debtor. It prevents the sale, transfer of title or refinancing of the property until the debt is satisfied.

Limitation - a certain time allowed by statute in which litigation must be brought.

Litigation - the process of fighting a legal dispute in the court system.

Locus delicti (lo kus de-lik'ti) - the place of the offense.

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Magistrate - a person who performs the functions of a judge but does not have the power to issue a court order. Judges sometimes pass work, hearings and trials, to magistrates or masters who then in turn make recommendations to the judge as to the particulars of the case.

Maintenance - the same as spousal support or alimony.

Malfeasance (mal-fe'zans) - evil doing; ill conduct; the commission of some act which is positively prohibited by law.

Mandamus (man-da~'mus) - the name of a writ which issues from a court of superior jurisdiction, directed to an inferior court or to a public officer, commanding the performance of a particular act.

Mandate - a judicial command or precept proceeding from a court or judicial officer, directing the proper officer to enforce a judgment, sentence, or decree.

Manslaughter - the unlawful killing of another without malice or intent; may be either voluntary upon a sudden impulse, or involuntary in the commission of some unlawful act.

Marital property - property that is acquired by the spouses during the marriage. It typically does not include any property owned prior to marriage.

Marital settlement agreement - a written agreement entered into by the spouses getting divorced stating their rights and agreements pertaining to property, support and custody.

Marketable title - a title not subject to reasonable doubt or suspicion of invalidity in the mind of a reasonable and intelligent person - one which a prudent person guided by competent legal advice would be willing to accept and purchase at market value.

Mediation - Process by which you work with a neutral third party to prepare your divorce agreement. This process is voluntary and non-binding.

Miranda warning - the statement recited to individuals taken into police custody. It warns of their constitutional right to remain silent and to have an attorney.

Misdemeanor - offenses less than felonies; generally those punishable by fine or imprisonment for a term of one year or less.

Misfeasance - a misdeed or trespass; the improper performance of some act which a person may lawfully do.

Mistrial - an erroneous or invalid trial; a trial which cannot stand because of lack of jurisdiction, improper drawing of jurors, or some substantial error during the trial which could not have been remedied by an instruction by the judge.

Mitigating circumstance - one which does not constitute a justification or excuse for an offense, but which may be considered as reducing the degree of moral culpability.

Modification - an order changing the terms of another order.

Moot - unsettled; undecided; not necessary to be decided.

Moral turpitude - conduct contrary to honesty, modesty, or good morals.

Motion - A request for some type of action or decision to be made by the court.

Murder - The unlawful killing of a human being by another with malice aforethought, either express or implied.

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Negligence - the failure to do something which a reasonable man, guided by ordinary considerations, would do; or the doing of something which a reasonable and prudent man would not do.

No true bill - a phrase endorsed by a grand jury on the indictment, is equivalent to "not found" or "not a true bill." It means that, in the opinion of the grand jury, evidence was insufficient to warrant the return of a formal charge or indictment.

Nolo contendere (no'lo kon-ten'dere) - a plea, usually used by defendants in criminal cases, but also used in other civil actions, which literally means "I will not contest it."

Non compos mentis (non kom'pos) - not sound of mind; insane.

Non-custodial parent - the parent with whom the child(ren) do not live the majority of the time with.

Non-marital property - property considered by the courts to belong to one spouse or another and that which is not available for equitable distribution.

Nullity - a decree indicating that a marriage is null and void.

Notice of Entry - a form given to a party saying that the final judgment of divorce was entered in the County Clerk's Office. A copy of the judgment, date-stamped to indicate the filing, is also given to the party with this document. The time to file a Notice on Appeal commences upon service of the judgment of divorce with Notice of Entry.

Note of Issue - a form filed with the court to notify the court that all documents are ready for the court's review or that the action is ready for trial. A separate fee is charged for filing and a Calendar Number is issued.

Nuptial - pertaining to marriage.

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Objection - taking exception to some statement or procedure used in trial, used to call the court's attention to improper evidence or procedure.

Offender - the alleged perpetrator or criminal.

Opinion evidence - evidence of what the witness thinks, believes or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts; not admissible except (under certain limitations) in the case of experts.

Order of protection - an order that the judge makes to protect someone (your child, you, or another adult in your case), from being harmed by another person who is involved in the case.

Order to show cause - a court order requiring a party to a civil action to appear in court on a specific date and time. This is scheduled to explain why the court should not take a particular action in the case.

Out of court - one who has no legal status in court is said to be "out of court," i.e., he is not before the court.

Overrule - the court's denial of any motion or point raised to the court, such as "overruling a motion for a new trial" or "objection overruled."

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Panel - a list of jurors to serve in a particular court, or for the trial of a particular action; denotes either the whole body of persons summoned as jurors for a particular term of court or those selected by the clerk by lot.

Parole - the conditional release from jail during the pendency of a case or conditional release from prison of a convict before the expiration of his sentence. If he observes the conditions, the parolee need not serve the remainder of his sentence; when the children go home with the parent or with another adult.

Parties - the persons who are part of a legal proceeding.

Paternity - the establishment of fatherhood.

Penal law - state or federal statute or statutes that define criminal offenses and specify corresponding fines and punishments. A statute or set of statutes imposing a penalty, fine, or other punishments for certain offenses of a public nature or wrongs committed against the state.

Pendente lite - (interim relief) a temporary order of the Court which provides support until the divorce is finalized.

Peremptory challenge - the right of parties in criminal and civil cases to dismiss a prospective juror without giving any reason. The number of such challenges is limited by statute.

Perjury - the act of testifying falsely under oath. An intentional lie as to a matter of fact, belief, opinion, or knowledge, given while under oath or in a sworn affidavit. the legal offense of deliberately testifying falsely under oath about a material fact.

Persecution - (In asylum proceedings) the infliction of serious suffering or harm, caused by government action or inaction, upon people who differ in a way regarded as offensive (race, religion, nationality, membership in a particular social group, or political opinion) in a manner condemned by civilized governments.

Personal jurisdiction - the power of the court to make orders regarding an individual and have them enforced.

Petition - the document which contains the charges against the parent.

Petitioner - the person who initiates the divorce by filing the petition.

Placement - when the children go into foster care for a specific amount of time, up to twelve months.

Plaintiff - a person who brings a civil action; the party who complains or sues.

Plea - the defendant's formal response to a criminal charge, either guilty or not guilty.

Plea bargaining - to agree to plead guilty to a less serious charge in order to avoid being tried on a more serious charge. The process of negotiation between the prosecutor and the defendant for a reduction of the penalty.

Pleading - the process by which the parties in a suit or action alternately present written statements of their contentions, each responsive to that which precedes, and each serving to narrow the field of controversy, until there evolves one or more points, affirmed on one side and denied on the other, called the "issue" upon which they then go to trial.

Polling the jury - asking jurors individually whether they assented and still assent to the verdict announced by the foreman.

Postnuptial agreement - a written contract between husband and wife that states all of their present and future rights in view of their impending divorce.

Power of attorney - authorization for one person to act as another's agent or attorney.

Precedent - a case which establishes legal principles to a certain set of facts, coming to a certain conclusion, and which is to be followed from that point on when similar or identical facts are before a court. A prior judicial decision that serves as an example or rule to authorize or justify other decisions in similar cases that follow.

Prejudicial error - synonymous with "reversible error;" an error which warrants the appellate court to reverse the judgment before it.

Preliminary hearing - synonymous with "preliminary examination"; the hearing given a person charged with a crime by a magistrate or judge to determine whether he should be held for trial. Since the Constitution states that a person cannot be accused in secret, a preliminary hearing is open to the public unless the defendant requests that it be closed. The accused person must be present at this hearing and must be accompanied by his attorney.

Prenuptial agreement - a legal contract signed by two people before they get married. It typically involves limitations on a spouse's rights to property, support, and inheritance upon divorce.

Preponderance of evidence - the greater weight (in terms of quality, not quantity) of evidence or that evidence which is more believable and convincing.

Present value - the value of a future payment or series of future payments discounted to the current date or to time period zero.

Presumption of fact - an inference as to the truth or falsity of any proposition of fact, drawn by a process of reasoning in the absence of actual certainty of its truth or falsity, or until such certainty can be ascertained.

Presumption of law - a rule of law that courts and judges shall draw a particular inference from a particular fact or from particular evidence.

Prima facie - (Lat.) at first view or on its face; requiring no additional support to establish validity or credibility; presumed to be true unless disproved by evidence to the contrary. Refers to evidence that, at first appearance, seems to establish a particular fact, but that may be later contradicted by other evidence.

Primary caretaker - the parent who provides majority of the child's day to day care.

Pro bono - legal services rendered without charge, in the public interest.

Pro se - appearing in an action on one's own behalf, without an attorney.

Probable cause - sufficient reason based upon known facts to believe a crime has been committed, or that certain property is connected with a crime. Probable cause means there is more evidence for than against. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime.

Probate - the act or process of proving a will.

Probation - typically in criminal law, to allow one convicted of a crime to go free while his prison sentence is suspended during good behavior, generally under the supervision of a probation officer.

Prosecute - to try to get a court to declare someone guilty of a crime. A district attorney prosecutes cases against persons thought to have committed violations of state criminal law.

Prosecutor - a public officer whose duty is the prosecution of criminal proceedings on behalf of the people of the state.

Punitive damages - an award to punish the wrongful party for willful improper action.

Putative father - the father that is known to the public as the father, either by being named on documents, i.e. the birth certificate or holding himself out to the public as the father. Distiguished from "legal" father, which is determined by court order, acknowledgement of paternity or being the child born out of a legal marriage.

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Qualified Domestic Relations Order - (QDRO) a court ruling stating that a portion of one spouse's pension be awarded to the other spouse as part of the equitable distribution of the marital assets. ( see QDRO section in your state).

Quit claim - to release legal claim. It is a document relinquishing claim, as in a quit claim to the deed to real property.

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Real estate - physical land and appurtenances affixed to land or land.

Real property - all interests, benefits, and rights inherent in the ownership of physical real estate.

Reasonable doubt - the standard by which an accused person is entitled to acquittal, requires a showing that a reasonable person could question the validity of the facts presented, that state of the minds of jurors in which they cannot say they feel an abiding conviction as to the truth of the charge.

Rebuttal - the introduction of answering evidence; proof by one party disputing proof provided by its adversary; also, the state of a trial when such evidence is introduced.

Reciprocity - the process of cooperation between states and countries to establish and enforce child support orders. Laws and court orders of each jurisdiction are recognized and enforced.

Record - all of the testimony and evidence that is used in court to decide a case, usually being recorded by a mechanical device or court reporter. What is on record is what the Judge will use to make his or her decision.

Recross - the second round of cross - examination that occurs after redirect in a trial.

Recuse - the action by a judge in disqualifying him/herself from hearing a case because of bias, prejudice or self interest. The judge's practice of removing him/herself from a case in which he/she is related to one or more of the parties or in which he/she has some special personal interest.

Redirect examination - follows cross-examination and is exercised by the party who first examined the witness.

Referee - a person to whom a cause pending in a court is referred by the court to take testimony, hear the parties, and report thereon to the court. He is an officer exercising judicial powers and is an arm of the court for a specific purpose.

Remand - when the children go into foster care until the next court date or until the trial is over.

Removal of Barriers to Remarriage form - This form is necessary when the marriage was solemnized in a religious ceremony by a member of the clergy, minister of any religion, or a leader of The Society for Ethical Culture. It requires the party obtaining the divorce to acknowledge that he or she has taken all steps to remove religious barriers to the other party's remarriage.

Reply - a pleading in response to an opposing motion or answer.

Request for Judicial Intervention (RJI) - A form filed with the court to request to have a judge assigned to the case.

Respondent - the defendant in a family court matter.

Rest - a party is said to "rest" or "rest his case" when he has presented all the evidence he intends to offer.

Restraining order - a court demand for someone to behave in a certain way and to stop violations of laws or court orders. A court can issue a restraining order preventing someone from visiting someone else. Also referred to as protection order, order of protection, etc.

Retainer - an agreement between the client and his/her attorney or counsel which denotes fees, terms of representation and rights/obligations of each.

Retainer Agreement - a written contract between lawyer and client delineating their responsibilities to each other.

Right of survivorship - the right of joint owners to receive the other's share of property upon the death of the other owner.

Rule of court - an order made by a court having competent jurisdiction, either general or special: either the regulations by which the practice of the court is governed or the special orders made in particular cases.

Rules of evidence - the rules that pertain to the deliverance of evidence in hearings or depositions.

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Sandoval hearing - a hearing to determine the use or introduction, by the prosecution, of prior convictions or proof of prior criminal activity or vicious or immoral acts to impeach a defendant's credibility when he testifies.

Search and seizure, unreasonable - an unlawful search of one's premises or person; a search which is unreasonably oppressive in its invasion of privacy, violating the Fourth Amendment.

Search warrant - a written order from a justice or magistrate directing an officer to search a specific place for a specific object, issued upon a showing of probable cause.

Securing order - an order of the court committing the defendant to the custody of the sheriff, or fixing bail, or releasing the defendant on his/her own recognizance; the court's decision in a bail hearing.

Self-defense - the protection of one's person or property against some injury attempted by another. The law of "self defense" justifies an act done in the reasonable belief of immediate danger. When acting in justifiable self defense, a person may not be punished criminally nor held responsible for civil damages.

Separate property - Property considered by the courts to belong only to one spouse or the other. It is not available for equitable distribution.

Separation - One spouse's absence from the marital household prior to divorce.

Separation Agreement - A written agreement on support for the child(ren), spousal maintenance payments, division of marital property, responsibility for debts (bills), residence of child(ren), child care and related issues. This agreement must be formally signed and acknowledged and covers the period before divorce but after the separation.

Service of process - in the context of a restraining order, the actual delivery of court paperwork that informs a person of an upcoming hearing and any temporary restraining orders against him/her. When someone receives this paperwork, s/he has been served.

Setoff - a debt or financial obligation of one spouse that the court weighs against a debt or financial obligation of the other spouse.

Settlement - a written compromise reached in a civil case and approved by a judge.

Severablity - the understanding that one clause in a contract is independent of the others.

Sheriff - an officer of a county whose principal duties are to aid the criminal and civil courts and act as chief preserver of the peace in many places. He serves processes, may summon juries, executes judgments and holds judicial sales.

Spousal support - money paid from one spouse to the other in one lump sum or in installments for a period of time, ordered by a Family Court judge or Support Magistrate (as distinguished from alimony).

Stare decisis (sta're de-si'sis) - a doctrine that, when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to future cases where the facts are substantially the same.

Statute - a formal law enacted by some legislative body, as in Congress or a state legislature.

Statute of Limitations - The time limit in which to bring an action.

Stay - the stopping or desisting of a judicial proceeding by order of the court.

Stipulation - an agreement by attorneys on opposite-sides of a case as to any matter pertaining to the proceedings or trial. It is not binding unless agreed to by the parties, and most stipulations must be in writing.

Subpoena (su-pe'na) - a document and process to cause a witness to appear and/or produce objects as part of giving testimony before a court or magistrate.

Substantive law - The law dealing with rights, duties and liabilities as distinguished from adjective law, which is the law regulating procedure.

Summons - a legal paper served on a named person notifying him that an action is being commenced against him and that he is required to appear or to answer the complaint in the action within the time stated in the summons.

Summons With Notice - A legal document which starts the Plaintiff's action for a divorce and requires the Defendant to serve a Notice of Appearance in the action within a specific period of time. This document is initially filed with the County Clerk 's Office and a copy is then served upon the Defendant to give notice that the Plaintiff has started a divorce action. It states the reason(s) for the divorce and may also include requests for additional relief such as: child support, custody, visitation, spousal maintenance and equitable distribution.

Supreme Court - The highest trial-level court in New York State. Divorce actions may be started only in this court.

Suppression of evidence - the ruling by the trial judge that evidence sought to be admitted should be excluded because it was illegally acquired, the exclusion of certain information or evidence from being presented in a legal proceeding as though the evidence didn't exist.

Surrender - a legal document signed by the parents stating that their child can be adopted.

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Testator or testatrix - the maker of a written will. A person who dies without leaving a will dies "intestate."

Testimony - evidence given by a competent witness, under oath; as distinguished from evidence derived from writings and other sources.

TOP (temporary order of protection) - an order that the judge makes to protect someone from being harmed by another person involved in the case. The temporary order of protection lasts for whatever time period the judge decides. (If you are a victim of domestic violence, you may seek an order of protection against the person who hurt you.)

Tort - an injury or wrong committed, either with or without force, to the person or property of another.

Transcript - the official record of proceedings in a trial or hearing.

True bill - In criminal practice, the endorsement made by a grand jury upon a bill of indictment when it finds sufficient evidence to warrant a criminal charge.

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Uncontested divorce - A divorce action in which the Defendant does not respond to the Summons or otherwise agrees not to oppose the divorce even if financial issues are contested.

Unemancipated children - Children under the age of 21 who are supported by a parent or guardian.

Unlawful detainer - a retention or withholding of real estate without the consent of the owner or other person entitled to its possession.

URESA (Uniform Reciprocal Enforcement of Support Act) - the statute which enables one state to request assistance from another state in establishing or enforcing a child support order against a parent located in the other state.

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Vacate - to cancel or set aside.

Valuation process - a systematic procedure employed to provide the answer to a client's question about real property value.

Venue (ven'u) - the particular county, or geographical area in which a court with jurisdiction may hear and determine case.

Verdict - the formal decision or finding made by a court or jury, reported to the court and accepted by it.

Verification statement - an oath stating that the information in a document is true.

Violation - an offense less serious than a misdemeanor; an offense, other than a "traffic infraction" for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed. A violation is not a crime.

Visitation - the right of the parent who does not have physical custody to see his or her child.

Visitation schedule - a list of dates stating times each parent may see each child.

Voir dire (vwor der) - "to speak the truth", the preliminary examination which the court or the attorneys may make of one presented as a witness or juror, as to his qualifications.

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Wade hearing - a hearing to determine whether identification by an eyewitness will be admissible at trial.

Waive - to give up.

Waiver of immunity - a means authorized by statutes by which a witness, in advance of giving testimony or producing evidence, may renounce the fundamental right guaranteed by the Constitution that no person shall be compelled to be a witness against him - or herself, frequently demanded of a public official.

Warrant of arrest - a writ issued by a magistrate, justice or other competent authority, to a sheriff, or other officer, requiring him to arrest a person therein named and bring him before the magistrate or court to answer to a specified charge.

Without prejudice - a dismissal "without prejudice" allows a new suit to be brought on the same cause of action.

Witness - one who testifies to what he has seen, heard, or otherwise observed.

Writ - an order issuing from a court of justice and requiring the performance of a specified act, or giving authority and commission to have it done.

Writ of execution - a court order authorizing the seizure of an asset of a noncustodial parent who owes past due child support. The order usually authorizes the seizure of assets up to the total amount of past due child support owed under the judgment, also know as a levy.