| Abandonment | See Utter Desertion and Grounds for Divorce. |
| Abuse of Discretion | A standard that gives trial courts enormous freedom in the way judges decide cases. See Appeal and Standard of Review. |
| Abuse Prevention Orders | Massachusetts General Laws Chapter 209A authorizes the Probate and Family Court and other trial courts to prohibite abuse of the person seeking protection from an abusive spouse or other household member. |
| Acknowledgment | Statement of a notary attached to some documents, confirming the person signing did so voluntarily and also provided proof of identity to the notary. See Notary Public. Also acknowledgment of paternity, whereby a man voluntarily identifies himself as the father of a child. |
| Admission to the Bar | Lawyers in Massachusetts are admitted to the practice of law after passing a written examination and character assessment, or if admitted to practice in another state for a sufficient period and in good standing in that state, then the lawyer may be admitted on “waiver” of the written examination. Lawyers may also be admitted solely for the purpose of representing a client for one matter, provided that a court rules favorably on a motion to permit the appearance pro hac vice (Latin meaning, “for this occasion”). Massachusetts does not require local counsel to work with out-of-state counsel, unlike some other states. |
| Admissions, Requests for | One of many devices used before trial by a party to the law suit under procedures outlined in rules of court. The party may submit written requests for admissions of fact to the opposing party who must respond in writing within a specified period or else the matter is taken as admitted as fact. See Discovery. |
| Adoption | Legal procedure that creates a parent-child relationship between two people, and imposes all rights and responsibilities of that relationship on both parties |
| ADR or Alternative Dispute Resolution | Means for resolving differences between parties that involve arbitration, conciliation, mediation or collaborative divorce proceedings instead of traditional proceedings in court. See Arbitration, Collaborative Divorce, Conciliation and Mediation. |
| Adultery | Sexual relations between a married person with a partner who is not that person’s spouse. A fault ground for divorce in Massachusetts — rarely used. See Grounds for Divorce. See also Condonation and Recrimination. |
| Advisement, Under | Matters taken under advisement by a court after hearing will lead to a written order or judgment being entered and issued sometime thereafter. |
| Affidavit | Statement signed under oath such as the mandatory statement required of both spouses seeking an uncontested no-fault divorce, outlining reasons for the irretrievable breakdown of the marriage. Also affidavits are commonly used to explain reasons for requesting a particular court order at a Motion Session, said to be “an affidavit in support of the moving party’s Motion.” |
| Alienation of Affection and Criminal Conversation | Suit by an aggrieved spouse against a paramour. This cause of action has been abolished in Massachusetts. |
| Alimony | Spousal support paid by one spouse or former spouse to the other. If paid under the terms of a written agreement or court order, and if the payments also meet all other requirements of the Internal Revenue Code of 1986, as amended, payments may be deductible by the paying spouse and taxable to the receiving spouse. The parties may elect to make payments nondeductible and nontaxable, but in most cases, the recipient is in a lower tax bracket, thereby allowing the spouses to shift funds from the higher tax bracket of the paying spouse. Between the two tax payers (that is, the recipient spouse and the paying spouse), there will be a tax savings, freeing up more spendable cash because the IRS receives fewer tax dollars. |
| Alimony Buy-Out | A lump sum payment made by one spouse to another in exchange for the recipient’s waiver of all alimony. See Lump Sum Distribution. |
| Annulment | Legal procedure that declares the purported marriage between two parties never existed. Also a religious procedure that removes any faith-based impediment to remarriage by voiding the prior marriage. |
| Answer | Under the rules of court, the party being sued has an opportunity, usually within twenty days of receiving notice of the suit) to file and serve an answer to the complaint. The answer, like the complaint, follows a standard format. The defendant may also file a counterclaim. See Complaint. See also Counterclaim. |
| Antenuptial Agreement | See Prenuptial Agreement. |
| Appeal | A request by a dissatisfied litigant in a trial proceeding to a higher court of a particular order or judgment of the trial court. Appeals Courts rarely overturn a court because they disagree over findings of fact. Appeals Courts give great deference to the trial court in terms of their decisions on the credibility of witnesses. If the trial court abused its discretion, however, or was wrong on the law, then the Appeals Court may overturn the lower court. See Abuse of Discretion. |
| Appeals Court | The court to which a dissatisfied litigant in the Probate and Family Court may file an appeal. In certain cases the Supreme Judicial Court will hear the appeal. |
| Appearance of Counsel | Official notice to parties and the court that a lawyer is representing a party to a suit. |
| Appraiser, appraisal | A person, usually trained and certified in his or her particular field by a recognized body, to conduct an appraisal of an asset to determine its fair market value, or the price a willing seller would sell to a willing buyer in an arm’s length transaction. The value of an asset is relevant to what each spouse may receive upon the equitable distribution of assets upon divorce. See Equitable Distribution. |
| Arbitration, arbitrator | An alternative to traditional court proceedings. Arbitration may take place by agreement of the parties who pay a private individual (usually a lawyer or retired judge) to arbitrate; that is, to determine what should be done with respect to custody, visitation, division of assets, child support, alimony, etc. The dissolution of marriage can only be granted by a court. the arbitrator’s findings and decisions with respect the children, property and finances, may be adopted by the court and made a part of its orders and judgment. |
| Assistant Register | Persons who generally assist judges in the courtroom as “clerks” and in certain instances persons who must approve a party’s request to present certain emergency matters to a judge. |
| Automatic Restraining Order | Under current rules of court, both parties are automatically restrained from disposing of assets or spending money except to pay ordinary expenses and legal fees. The plaintiff (parity who brings suit) is restrained upon filing the papers with the court. The defendant (party being sued) is restrained upon being served with the summons and complaint. |
| Batter, batterer profile | Abuser, person who commits violent acts, usually in the context of domestic setting. A batterer profile may include an individual of low self-esteem who may or may not abuse a substance, one who will manifest remorse and promise to refrain from future violence, only to escalate the violence and frequency. Extremely controlling of the victim; attempts to isolate the victim from friends and family. See Violence, Cycle of and Abuse Prevention Orders. |
| Battered Wife/Spouse | Victim of domestic abuse. See Abuse Prevention Order, Batterer, and Shelters. |
| BBO | See Board of Bar Overseers. |
| Best Interests of the Child | A legal standard applied to child custody cases where the decisions made must be consistent with the best interests of the child. |
| Board of Bar Overseers | Also referred to as BBO; regulatory agency that registers, oversees, and disciplines attorneys in Massachusetts. A BBO number refers to the attorney’s registration number. |
| Caption, Case | The name of the case, usually taken from the last name of the plaintiff (person who filed suit). |
| Care and Protection Proceedings | Actions taken under Massachusetts General Laws Chapter 119 for the care and protection of children, including the removal of children from a parent’s care; also deals with the reporting of child abuse under Section 51A. Mandated reporters of abuse include any physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist, optometrist, osteopath, public or private school teacher, educational administrator, guidance or family counselor, day care worker in a public or private facility, home or program, probation officer, clerk/magistrate of the district courts, parole officer, social worker, foster parent, firefighter, police officer, allied mental health and human services professional as, drug and alcoholism counselor, psychiatrist and clinical social worker. See Mandated Reporter. |
| Case Management Conference | Court proceeding before trial that may be required by the presiding judge or requested by the parties to assist in resolving the case or preparing for trial. See Status Conference, Review Date and Pre-Trial Conference. |
| Child Custody | Refers to matters relative to where a child resides, with whom, and how the child is raised. See Joint Legal Custody, Physical Custody and Parenting Plan. See also Visitation and Parenting Schedule. |
| Child Dependency Exemption | A tax savings exemption that may be traded by the so-called custodial parent to the non-custodial parent. The custodial parent must sign a consent form, U.S. Treasury Form Number 8332. |
| Child Support | Payments made by one parent, usually to the other parent of an unemancipated child. Payments are not taxable to the recipient and are not deductible by the paying parent, in contrast to alimony. See Emancipation and Alimony. |
| Child Support Enforcement Unit, CSEU | The division of the Massachusetts Department of Revenue that is responsible for collecting child support and keeping records of monies owed and collected. See Wage Assignment. |
| Child Support Guidelines | The federal government mandated that all states, including Massachusetts, implement guidelines to determine an appropriate amount of support to be paid by parents for unemancipated children. Guidelines vary from state to state by amount and length of time support must be paid. |
| Child Support Guidelines Worksheet | Form that parties fill out to determine amount of child support one party should pay the other. The court may disregard that amount, if there is evidence that the needs exceed the guidelines, or if the parties’ income is significantly higher than the so-called maximum income outlined in the annotations. |
| Civil Union | A marriage-like arrangement between same sex couples recognized in Colorado, Hawaii, Illinois and New Jersey (as of Nov. 18, 2014). Some states allow Domestic Partnerships (California, District of Columbia, Maine, Nevada, Oregon, Washington and Wisconsin) and Reciprocal Beneficiaries (Hawaii). Note: all states where civil unions or domestic partnerships are allowed also allow same sex marriage by statute or court ruling. Also note that in some states domestic partnerships are not limited to same sex couples. State employees on those states are entitled to claim domestic partnership benefits. |
| COBRA | Federal law meaning Consolidated Omnibus Budget Reconciliation Act of 1986 that permits the temporary continuation of group health insurance for certain individuals upon certain events such as a former spouse of an employee covered by an employer’s plan. The cost is usually higher than it would be ordinarily. |
| Collaborative Divorce | An alternative means of resolving family law or divorce issues that requires both parties and their collaborative attorneys to sign a pledge to remain out of court until the case is settled, and if the parties are unable to settle, then they must discharge the collaborative lawyers and retain new counsel. See ADR and Mediation. |
| College Expenses | Parties to a divorce may be ordered to pay for a dependent child’s college expenses. Married parties have no similar responsibilities under the law. |
| Common Law Marriage | Massachusetts does not recognize common law marriage, that is a marriage arising out of a couple’s cohabitation in Massachusetts. |
| Community Property | Nine of the fifty states are community property states. They are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In theory, divorcing spouses are entitled to half of all assets, unlike equitable distribution states that permit unequal divisions. |
| Complaint | A legal proceeding, also a court form, initiated or filed by one party, usually called the plaintiff, against another party, usually called the defendant. See also Joint Petition and Petition. |
| Computer Generated Forms, Standards for | Under the Uniform Practices No. XXXIII, computer generated forms are permitted except in instances where the official court form is a multi-part form such as the wage assignment form, abuse prevention forms and request for cassette copies, etc. The computer generated form must conform as closely as possible to the form printed by the court and on the same quality and color paper as the court uses. |
| Conciliation | Conducted by court appointed volunteers acting as conciliators, usually experienced divorce lawyers, who attempt to resolve the parties’ differences. |
| Condonation | Legal defense against an allegation of adultery in a divorce proceeding, meaning the aggrieved spouse has forgiven the adulterer. See Grounds for Divorce. See also Adultery. |
| Consideration | A term used in contract law meaning what was given or exchanged of value for the benefit of the bargain. The consideration might be a promise for a promise. |
| Consolidation | The act, usually at the written request of a party, to a judge for permission to have one or more matters brought together or consolidated into a single action for hearing before the trial court, instead of conducting two more separate trials on each action. The request will be granted if the matters arise out of the same facts. For instance, the judge might consolidate actions on abuse prevention and divorce. |
| Contempt of Court | A finding by a judge that a party has violated a court order, usually after a complaint for contempt has been filed and served, and a hearing has taken place. If a defendant (party being sued) is found in contempt, that party may be ordered to pay the prevailing party’s attorneys’ fees and may also face incarceration until he or she purges himself or herself of the contemptuous behavior. |
| Contempt Summons | Summons issued by the Probate and Family Court after the filing a complaint for contempt. The day set for the court appearance is included on the summons. |
| Counterclaim | The written response of a party being sued who seeks his or her own judgment against the plaintiff who brought suit in the first instance, common practice in divorce proceedings. See Complaint and Answer. |
| County, counties | Massachusetts is comprised of fourteen counties, including (1) Barnstable; (2) Berkshire; (3) Bristol; (4) Dukes; (5) Essex; (6) Franklin; (7) Hampden; (8) Hampshire; (9) Middlesex; (10) Nantucket; (11) Norfolk; (12) Plymouth; (13) Suffolk; and (14) Worcester. Where the parties may file for divorce depends on where they last lived together and where they live at the time of the filing of papers. See Venue and Residency. |
| Court Officer | Uniformed court personnel in charge of courthouse and courtroom security. |
| Court Reporter | Person trained and certified to transcribe proceedings. Also referred to as a Court Stenographer. |
| Court Stenographer | See Court Reporter. |
| Coverture | A married woman’s status; now more commonly used to refer to the period of marriage, particularly when dealing with pensions that existed before and during marriage. |
| Cruel and Abusive Treatment | One of the seven fault grounds for divorce in Massachusetts, and the most commonly used of those grounds. Sometimes referred to as the old-fashioned no-fault divorce, despite its harsh sounding terms. It covers a wide range of behavior. See Grounds for Divorce. |
| Curtesy | A widower’s right to a share of his wife’s real estate. See Dower. |
| Daubert Test | The legal standard set by the U.S. Supreme Court in Daubert v. Merrel Dow Pharmaceuticals, Inc. in 1993 to determine whether certain evidence is scientifically accepted and subject to testing, and therefore admissible as evidence. See Frye Test and Lanigan Test. |
| Decree | Older term for Judgment. |
| Department of Revenue, DOR | Massachusetts state agency responsible for collecting child support through the Child Support Enforcement unit. See Child Support Enforcement Unit. |
| Dependency Exemption | Usually involves an unemancipated child of a tax payer who claims the child as a dependent on a tax return. See also Emancipation. |
| Depositions | Under court rules governing discovery, a party to a law suit may request in writing by a deposition subpoena that the other party, the deponent, attend a deposition with his or her own attorney. At the deposition, the deponent answers questions orally under oath. The deposition is usually recorded by a stenographer. Counsel representing the deponent may object to questions, and also has an opportunity to cross exam. The stenographer may make a transcript of the deposition. The deponent may be given an opportunity read and correct the transcript. See Discovery. |
| Desertion, Utter | One of seven fault grounds for divorce, provided, however, that the party seeking a divorce based on utter desertion must prove that the defendant (deserter) has been gone for at least one year, and the abandoned spouse did nothing to cause the deserter to leave. See Grounds for Divorce. |
| Discovery | Means for finding out or discovering what your opponent knows or is doing with respect to matters that may lead to admissible evidence at trial. |
| Divorce | In civil law, divorce is the dissolution of a legally recognized marriage through legal proceedings ending in a judgment of divorce entered by a judge of a civil court. The judgment usually deals with the spouses’ financial responsibilities and parenting issues when there are dependent children; in certain religions such as Islam and Judaism, a married person is not considered divorced and eligible to remarry unless the spouses follow procedures recognized under religious beliefs and practices. |
| Divorce Financial Planner | Person trained and certified by one of several nationally recognized groups to advise parties going through divorce on various strategies to maximize value and income, while minimizing taxes. |
| Docket | The court’s index, including the names of the cases, the numbers assigned to the cases, and a short description of each matter. See Docket Number. |
| Docket Number | Number assigned by the court to the case after a complaint has been filed. |
| Domestic Relations Order | An order entered by the divorce judge relative to the division of a state or municipal pension at the time of or after divorce. No immediate tax consequences arise from the division, if made pursuant to a Domestic Relations Order. See Qualified Domestic Relations Order or QDRO. |
| Domestic Relations, Rules of Procedure | Court rules governing the time, mode and manner of filing, serving and conducting a law suit in the Probate and Family Court. See Probate and Family Court. |
| Domestic Violence | Physical or verbal violence by one intimate partner or member of the household against another. See Abuse Prevention Orders. |
| Dower | A widow’s right to a share in her husband’s real estate. See Curtesy. |
| Emancipation | In Massachusetts a child is entitled to be supported by both parents until emancipation. Under Massachusetts General Laws Chapter 208 Section 28 a child may continue receiving support by order of the court if the child has attained age eighteen but who has not attained age twenty-one and who is domiciled (that is, maintains a legal residence with a parent while living in another location such as school) in the home of a parent, and is principally dependent upon that parent for maintenance. The court may make orders of support for any child who has attained age twenty-one but who has not attained age twenty-three, if the child is domiciled in the home of a parent, and is principally dependent upon the parent for support due to the enrollment of the child in an educational program, excluding educational costs beyond an undergraduate degree. An unemancipated child is entitled to support from both parents. |
| Equitable Distribution | Description of the statutory scheme for dividing assets between divorcing spouses in Massachusetts. Equitable distribution allows a trial judge to make an uneven division based on numerous considerations, including among other things, length of marriage; age, health and needs of parties; future earnings and acquisition of assets; educational and employment histories; contributions to asset acquisition, maintenance, and appreciation; homemaker contributions; and needs of dependent children. See Community Property. |
| Estate | In the context of divorce proceedings, the term includes land and personal property of all kinds. Assets may be distinguished as pre-marital, that is, owed before marriage and marital, meaning assets acquired during marriage. |
| Evidence, Rules of | Court rules that govern how and what may be introduced into evidence, and what may be excluded. See Privilege. |
| Evidentiary Hearing | A proceeding before a judge that permits witnesses to testify under oath and for the submission of documents into evidence under the rules of evidence. |
| Ex Parte | Usually meaning no prior notice is given to the opponent because of an emergency. In Middlesex County, it used to be applied to the Motion Session regardless of whether prior notice was given. |
| Expert Witness | A witness who has special knowledge of matters of interest to the court. For example, a child psychologist may testify about matters pertinent to custody, and a forensic accountant might testify about hidden income. The expert must be qualified by the court as an expert in his or her field. |
| Family Law | Practice specialty among lawyers, including divorce and adoption. |
| Family Service Officer | See Probation Officer. |
| Fault | Ground for divorce based on one spouse’s bad act or acts. See Grounds for Divorce, Condonation and Recrimination. See also No-Fault Divorce. |
| Fee Agreement | A written agreement between a lawyer and client with respect to the manner in which fees and costs will be charged, and if a retainer is requested, the amount of the retainer, and the special rules governing the retainer. If interest is generated on the account, if may be distributed under the IOLTA rules of the Board of Bar Overseers to certain designated charities. If funds are held for a lengthy period or in significant sums, the interest may be generated for the benefit of the client who is also taxed on the interest. See Retainer and IOLTA. |
| Filing Fees | Costs charged by the court for filing certain papers such as a complaint for divorce. There is no charge at time of publication for filing a complaint for contempt. |
| Filing Status | In the context of tax law, the marital status of a taxpayer on the last day of the calendar year. If a judgment of divorce is not yet final, the party must file a joint return with the spouse, or married, but filing separately. A joint return may impose joint liability on the spouses, and if there is any concern on the part of one spouse, a separate return is preferable, as the Innocent Spouse defense is increasingly less successful. |
| Financial Statement, Short and Long Form | Itemizations that must be completed on short or long forms issued by the court, and also available through private sources. The short form must be used by parties who have less than $75,000 a year in income. The long form must be used for those with $75,000 or more. The short form is printed on pink paper, and the long form on purple paper. |
| Findings of Fact | After an evidentiary hearing, judges make findings of fact and rulings of law. In other words, the judges decide what is true factually and what laws apply to the facts. Together these findings of fact and rules of law form the basis of the orders and judgment entered by the judges after trial. See Rulings of Law. |
| Foreign Divorces | Any divorce not granted by a court in Massachusetts, even if elsewhere in the United States. |
| Frye Test | Older standard of admissibility of expert testimony that requires scientific acceptance under Frye v. United States, decided by the Circuit Court of Appeals in the District of Columbia in 1923. See Daubert Test and Lanigan Test. |
| General Court | Term used to describe the Massachusetts legislature, distinguishing that body from the Supreme Judicial Court. See Supreme Judicial Court. |
| Grandparent Visitation | A now eroded concept that grandparents have the right to ask for visitation of grandchildren when and if parents are divorcing or divorced. |
| Gross and Confirmed Habits of Intoxication | Rarely used fault ground for divorce, requiring the plaintiff (party seeking the divorce) to show the defendant (guilty party) is intoxicated all of the time, including the day of the divorce hearing. |
| Grounds for Divorce | Legal basis for a divorce. In Massachusetts seven fault grounds are recognized, including: (1) adultery; (2) impotency; (3) utter desertion continued for one year prior to the filing of the divorce complaint; (4) gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; (5) cruel and abusive treatment; (6) if a spouse has sufficient ability, grossly or wantonly and cruelly refusing or neglecting to provide suitable support and maintenance for the other spouse; or (7) confinement for a crime for life or for five years or more. Massachusetts also provides for no-fault divorce based on an irretrievable breakdown of the marriage. See Fault. See also No-Fault Divorce. |
| Guardian ad Litem | Court appointed investigators usually paid by the parties, and chosen from among a prequalified list of mental health professionals or lawyers to delve into matters relating to the care and custody of minor children or persons who may be deemed incompetent. In matters relating to minor children, the guardian ad litem, often referred to as a G.A.L., writes a report, and may include recommendations on custody. The court is not bound by the recommendations. |
| Harmless Error | Under Rule 61 of the Rules of Domestic Relations Procedure no change in an order or judgment is required in the event of harmless error. |
| Hague Convention | The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a treaty among many nations, which seeks to protect children from abduction and retention across international boundaries by providing a procedure to bring about the prompt return of children to their home state. The United States is a signatory to the treaty. While many nations are signatories, there are notable exceptions. Federal courts have jurisdiction over Hague Convention cases. |
| Hearing | See Motion Day. |
| Hearing on the Merits | See Trials. |
| High Income Cases | Meaning family income exceeds the maximum of $250,000 mentioned in the Child Support Guidelines. |
| Home State | In the context of a child custody case, where the child resides for at least six months or last resided before abduction; or where the child or one of the contestants has a significant connection; or if no other state will act as home state, then the state hearing the case. See Uniform Child Custody Jurisdiction. |
| Illegitimacy | See Out-of-Wedlock. |
| Impotency | One of the fault grounds for divorce. See Grounds for Divorce. |
| Impoundment | The act authorized by a judge or rule that certain papers are not accessible to the general public. Financial statements, for example, are impounded, and are available only to the parties and their lawyers. Reports of the guardian ad litem are also impounded. In general all other documents are accessible to the public, unless a party successfully argues to a judge that there is no public interest to be served. It is increasingly difficult to impound records, especially if one or both of the parties are public figures. |
| Imputed Income | Compared to actual income, imputed income is the amount of income attributed to or assigned to a party who may be underemployed or unemployed. If the court determines that the underemployment or unemployment is voluntary, the court may impute income to that party to determine what would be fair when dividing assets or awarding alimony and/or child support. |
| Interrogatories | Under the court rules governing discovery, parties to a suit may prepare and serve (deliver) written questions that must be answered under oath by the opposing party. See Discovery. |
| Intestate | Dying without a will. |
| IOLTA | Meaning Interest on Lawyers’ Trust Accounts. Interest may be generated for the client in some instances or for certain charities designated by the Massachusetts Bar Foundation. |
| Irretrievable Breakdown of the Marriage | Terms used to describe a no-fault divorce under Massachusetts General Laws Chapter 208 Sections 1A and B. |
| Joint Legal Custody | Massachusetts gives preference to joint legal custody over minor children, meaning both parents are entitled to participate in the major decisions affecting the child’s health, education and welfare, and both parents have the right of access to school and medical records. Legal custody is distinguished from physical custody. See Sole Legal Custody, Physical Custody and Parenting Plan. See also Visitation. |
| Joint Petition | Court form used in uncontested no-fault divorces filed under Massachusetts General Laws Chapter 1A. Both spouses sign the joint petition, requesting that both petitioners be granted a no-fault divorce. See No-Fault Divorce. See also Complaint. |
| Judgment of Divorce Absolute | A final judgment of divorce. See Judgment of Divorce Nisi and Final Judgment. |
| Judgment of Divorce Nisi and Final Judgment | After a hearing on the merits, or trial, the presiding judge will enter a judgment of divorce nisi, meaning a temporary order that becomes final automatically after a 90 or 120 day waiting period, depending on the ground or basis for the divorce. Uncontested no-fault divorces filed under Massachusetts General Laws Chapter 1A require a 120 waiting period. All other divorces require a 90 day waiting period before the final judgment is entered. Remarriage is not permitted until the judgment is final. See also Judgment of Divorce Absolute. |
| Judgment, Relief from | At the written request of a party by motion before the trial judge, seeking relief from all or a portion of the judgment for certain reasons outlined in Rule 60 of the Rules of Domestic Relations Procedure. Reasons include clerical mistakes, other mistakes, inadvertence, excusable neglect newly discovered evidence, fraud, etc. |
| Judicial Conduct Commission | Body authorized to investigate and discipline judges. |
| Jurat | See Acknowledgment. |
| Jurisdiction | A broad term referring to the power or authority of a court to decide certain cases. For example, in Massachusetts the Probate and Family Court has jurisdiction over divorce cases. Compare Venue. |
| Lanigan Test | Refines the Daubert Test in Massachusetts requiring a test of demonstrated reliability, not unanimous support. |
| Last and Usual Residence | Where a party last lived. Often used when the plaintiff (party suing) does not know the present whereabouts of the defendant (party being sued). See Notice by Publication. |
| Lawyer for the Day | Volunteer lawyers who may be available at a Probate and Family Court to assist parties without lawyers. |
| Long Arm Jurisdiction | By statute the ability of a party to bring suit in Massachusetts against a nonresident under certain circumstances. See Jurisdiction. |
| Lump Sum Distribution | A one-time payment, usually in connection with a property settlement or an alimony buy-out. See Alimony Buy-Out. |
| Maintenance | See Alimony and Child Support. |
| Mandated Reporter | Any one of a number of professionals who have dealings with parents and children who must report neglect or abuse of a child. See Care and Protection Proceedings. |
| Mandatory Self-Disclosure | A rule of court requiring both parties to a divorce to exchange certain documents upon the filing and serving of divorce papers. The documents deal with finances and medical insurance. |
| Marital Residence | The last home where the spouses lived together as a married couple, and it may determine where the parties are allowed to file for divorce. For example, if they last lived together in Middlesex County, and one spouse continues living in that county, they must file for divorce in Middlesex County, unless both parties live in different counties at the time the divorce complaint is filed. See Venue. |
| Marital Settlement Agreement | See Separation Agreement. |
| Marriage | Relationship between two consenting parties, historically between a man and a woman, but in some jurisdictions like Massachusetts, between same sex parties. As of January 13, 2015, thirty-six states allow same sex marriage by court decision, legislation or by popular vote. Fourteen states ban same sex marriage. There are pending appeals involving seven states that have banned same sex marriage. |
| Marriage Certificate | Official document that must be filed with divorce papers, proving that a marriage exists between the parties who are eligible to proceed with a divorce. |
| Massachusetts General Laws | Written laws of the Commonwealth of Massachusetts, with annotations occasionally, meaning a publisher has added an explanation and cases that have cited the statute. |
| Masters, special masters | Persons appointed by the court to hear evidence and file a report that may or may not be accepted by the court. May be used where there are particularly troublesome issues around child custody or financial matters. |
| Mediation | Parties use the services of a neutral third party, usually a trained and certified mediator with a background in law and/or psychology, to assist negotiation. Lawyers may or may not attend sessions, but are usually recommended as “coaches” to assist before and after mediation sessions, and to review settlement documents before parties sign. See ADR and Collaborative Divorce. |
| Medical Expenses | Courts do not routinely include dental and orthodontia under medical expenses; thus, the parties should carefully delineate what they want and what they mean when referring to medical expenses when requesting a court order for payment of medical expenses. |
| Memorandum of Law | Document prepared by and submitted to a court on behalf of a party that outlines the facts of a particular case, and describes the applicable law and suggested outcome. |
| Merger | As applied to Settlement Agreements or Marital Settlement Agreements, the terms of which may be incorporated by a court into its judgment of divorce or separate support, but not permitted to survive the judgment with independent legal significance, meaning the court may modify the terms upon a showing of a material change in circumstances. Typically courts do not change property distributions unless a party committed fraud, but the courts will entertain requests to modify alimony, custody, visitation, and child support. |
| Minor Child | A child under the age of 18. Until a child reaches the age of 18, courts in Massachusetts have the authority to rule on custody and visitation. The more modern term used to encompass custody and visitation is Parenting Schedule, because it is less inflammatory. See Emancipation of a Child. |
| Modification Action | Usually brought after a divorce judgment has been entered, and when the plaintiff (party initiating the action) believes a material change in circumstances has occurred that requires a modification of the existing order and judgment. Modification actions deal with increasing, decreasing and/or terminating child support and alimony under certain conditions. |
| Motion | Request, usually in writing, to a court for a particular order or relief addressing a pre-trial issue. Common motions in divorce proceedings include, but are not limited to requests for a temporary order of custody, support, maintenance of life and health insurance. Orders at this stage are called temporary because the trial has not yet taken place, at which time so-called final orders are entered by the court. Unless there is an emergency, court rules required the moving (requesting) party to provide written notice to the other party at least seven (7) days before motions may be considered by the court. |
| Motion Day/Session | The regular time and places at which parties may present motions to the court. Some motions may be handled by a judge without oral argument or the presence of the parties and lawyers in court; in most instances, motions must be presented by the lawyers or parties if they are not represented, and argued in person before the judge. |
| No-Fault Divorce | Ground for divorce based on the irretrievable breakdown of the marriage where neither party is at fault, or none is claimed to be the basis or reason for divorce. |
| Nonsupport | One of the fault grounds for divorce in Massachusetts, rarely used, requiring proof that the guilty party who had the means failed to provide any support whatsoever for the accusing party. See Grounds for Divorce. |
| Notary Public | Person authorized or commissioned by the state to acknowledge or notarize the signature of a person who provides satisfactory proof of identity. Commissions are for a certain term and expire. The expiration date is usually noted under the notary’s name. A seal or stamp should be affixed to the notarized document. |
| Notice and Opportunity to Be Heard | Fundamental rules of due process that require all interested parties to have prior notice and an opportunity to speak for or against the proposition put forth before a court. |
| Notice by Publication | By order of court plaintiff may publish notice of a law suit in a local newspaper designated by the court to give notice of a law suit if the plaintiff cannot locate the defendant to serve papers by constable or deputy sheriff. |
| Orders | Usually written directives entered by the court upon request of one or both parties to a family law action such as a divorce, but in some instances a court may enter an order sua sponte, or of its own initiative, usually when both parties are in court before the judge. |
| Out-of-Wedlock | Term now applied to children born to unmarried couples. See Parentage and Paternity. |
| Paralegal | Person not practicing law, but assisting in preparation of pleadings, documents, and any number of other activities, usually under the supervision of an attorney. |
| Parent Coordinator | Person, usually a mental health professional or divorce lawyer, appointed by the court to make decisions relating to the children. The decisions are binding unless and until a judge makes a different ruling at the request of one or both parents. |
| Parentage | Determination of a child’s biological parents for purposes of assigning rights and responsibilities for the child. See Paternity. |
| Parenting Class | Mandatory classes each parent of a child under eighteen attends. Given by state approved instructors at a nominal cost. Parents are not allowed to obtain a divorce without a certificate of attendance. Parents cannot attend the same class. |
| Parenting Plan | More contemporary term used by courts and family law lawyers to describe child Custody; a plan that outlines such things as where the child resides and means for decision-making concerning the child’s health, education and general welfare. See Parenting Schedule, Visitation and Emancipation. |
| Parenting Schedule | Term referring to visitation or time sharing of parents with minor child after separation and divorce or time sharing by unmarried parents who do not live together. See Parenting Plan, Visitation and Emancipation. |
| Party, Parties | Person or persons named in a law suit, usually the plaintiff and defendant, or the two spouses or parents. |
| Paternity | Determination of a child’s paternal parent, either by DNA or blood tests, or in some cases, by the act of caring for and interacting with the child as though the individual were the father of the child. |
| Pendente Lite, Fees | Court order for payment of legal fees prior to the judgment of divorce for legal fees to be incurred in pursuing a divorce. |
| Petition | See Complaint. See also Joint Petition. |
| Physical Custody | Where a child under the age of eighteen is located or resides. Physical custody may be shared equally, or there may be a primary residential parent and a visiting parent. See Joint Legal Custody and Sole Legal Custody. The courts and family law lawyers have begun to use the terms Parenting Plan instead of Custody and Parenting Schedule instead of Visitation. |
| Postnuptial Agreement | A contract entered into by the parties after marriage, not necessarily for purposes of separation and divorce. |
| Premarital Agreement | A contract entered into by the parties contemplating marriage. The contract may be enforced if it is fair and reasonable at the time the parties sign it and at the time it takes effect, usually upon death or divorce. Parties must provide full and fair disclosure of assets before signing. These agreements will not deprive a court of the opportunity to make its own decisions relative to the care and custody of unemancipated children of the marriage. also called Antenuptial Agreement or Prenuptial Agreement. |
| Prenuptial Agreement | See Premarital Agreement. |
| Preponderance of the Evidence | A standard of proof that requires the party seeking to make a point to prove by more than fifty percent of the weight of the evidence that he or she is correct. Compare with the criminal standard of proof that requires the state to prove beyond a reasonable doubt that the state is correct in its assertions of guilt. |
| Pre-trial Conference | Court proceeding before trial that may be requested by the parties or scheduled by the court. Typically the parties and counsel are ordered to meet in person before the pre-trial conference for settlement discussions, and must prepare and submit pre-trial memoranda outlining the areas of agreement and disagreement. The memoranda must also include proposed witnesses, exhibits (documents, etc.); proposed use of deposition transcripts; and a summary of all of the evidence to be offered with respect to equitable distribution. See Status Conference, Case Management Conference and Review Date. |
| Privilege | A concept relating to the Rules of Evidence, meaning certain matters cannot be revealed unless the holder of the privilege consents. For example, the lawyer-client privilege is held by the client. The psychotherapist-patient privilege is held by the patient, but in child custody matters, the psychotherapist can be compelled to testify if the psychotherapist has information relating to child custody — a determination made by the trial judge. See Waiver of Privilege. |
| Pro Bono | Meaning for the good of the public, or more typically meaning free legal services. |
| Pro Se Litigant | Party who appears or acts in a court proceeding without a lawyer. Parties have a right to act without counsel, but must abide by the same standards as an attorney. |
| Probate and Family Court | Massachusetts county courts that usually hear divorce cases, although Superior Courts are also authorized to grant divorces. |
| Probation Officer | A court employee who speaks with litigants in Probate Court before the litigants or parties appear before a judge at a motion session. Typically parties who are arguing over custody or support are sent or referred to the Probation Office by the judge’s clerk. Probation Officers are also called Family Service Officers who sometimes meet with the parties’ attorneys and sometimes meet with the parties without counsel. The Probation Officer may make a recommendation to the judge based on what was discussed before appearing before the judge. |
| Process Server | Constable or deputy sheriff; in some instances the court may appoint any disinterested party to serve papers. |
| Production of Documents | Under the court rules governing discovery, parties to a suit may prepare and serve (deliver) written requests for the production of documents by the opposing party. See Discovery. |
| Proposed Findings of Fact, Rulings of Law and Orders | Written proposal to the trial judge of what a party would like the judge to do after trial. The judge may accept in whole or in part any of the proposed findings, rulings and orders. |
| Qualified Domestic Relations Order | Under ERISA a Qualified Domestic Relations order or QDRO allows the divorce judge to order a division of a qualified retirement account without an immediate tax consequences. Each spouse may then draw upon his or her respective share under the rules of the individual plan, and each is responsible for any taxes or penalty owed on his or her distribution. |
| Reconsideration, Motion for | Under court rules, a written request by motion submitted by a party for the judge’s reconsideration of a ruling or order. |
| Recrimination | Now abolished, but once used to prevent parties from divorcing if both parties were at fault. |
| Register | Duly elected person in charge of the administration of the county Probate and Family Courts in Massachusetts. |
| Removal of Minor Children | Refers to the request of a divorcing or divorced parent to move out of Massachusetts with a child or children under the age of eighteen. Unless both parties agree, the moving parent must persuade the court that he or she should be permitted to remove the children. |
| Residency | Under Massachusetts law the moving party (person requesting the divorce) must meet a residency requirement first; that is, the person must live in Massachusetts for at least one year before filing for divorce or the reason for the divorce must have occurred in Massachusetts. The court will not permit the waiver of the one year requirement if the person person moved to Massachusetts for the purpose of obtaining a divorce, unless there is a valid emergency. For example, if a person flees from a batterer in another jurisdiction and comes to Massachusetts seeking protection, the court may grant a waiver. of the one year rule. |
| Retainer | A prepaid sum of money held in a specially designated bank account (IOLTA) under the rules of the Board of Bar Overseers where interest on the funds will go to certain charities designated by the Massachusetts Bar Foundation. Funds are usually paid and held under the terms of a written fee agreement. See Fee Agreement and IOLTA. |
| Review Date | See Status Conference and Case Management Conference. |
| Rulings of Law | After trial, the trial judge will enter findings of fact (a written description of the facts found to be true) and will also enter rulings of law based on those findings. For example, if the judge finds (determines) that the parties have been married for 21 years, the judge may enter a ruling that the parties have a long term marriage that warrants an equal division of all assets, including assets owned before marriage. See Findings of Fact. |
| Same Sex Marriage | In 2004 the Massachusetts Supreme Judicial Court ruled that same sex couples should be permitted to marry in Massachusetts, provided, however, they were residents of the Commonwealth. |
| Sanctions | The penalty a judge may impose on a party or counsel for failure to observe or comply with certain rules, orders or practices. |
| Satellite Session | Informal term used to describe a location of a court other than the main courthouse located in the county seat. For example, in Middlesex County the county seat is located in Cambridge, but judges may be sitting in Marlborough. In Essex County the main courthouse is in Salem and the satellite court is located in Lawrence. |
| Separate Support | A legal action in Massachusetts that allows a judge to rule that the parties are living apart for justifiable cause, and also permits the court to enter orders for custody of children and financial orders. |
| Separation Agreement | Also referred to as a Marital Settlement Agreement, never as a Divorce Agreement because parties are not free to agree upon divorce. Courts grant divorce, and may approve the terms of a separation agreement or marital settlement agreement, incorporating the terms into the judgment of divorce, and making those terms enforceable as a court order. Agreements may survive or merge with the judgment, making them harder or easier to modify by future court proceedings. See Survival and Merger. |
| Service of Process | The delivery of court papers under rules of court to give legal notice of the commencement of a law suit, usually requiring the delivery of an official summons by a constable, deputy sheriff or other duly appointed disinterested party. See Summons. |
| Settlement, Offers of | Offers of settlement are not admissible into evidence on the ground that they may adversely affect the trial court’s decision-making. |
| Shelters | Safe havens for victims of violence operated by various not-for-profit organizations throughout the state and country. Locations are kept secret for the safety of its residents and staff. |
| Single Calendar System | In Massachusetts some counties assign a judge to a case when it is filed, and that judge will continue hearing and deciding all matters relative to the case until conclusion. In other counties any judge may rule on a particular aspect of the case such as motions presented at various times. |
| Sole Legal Custody | One parent is given the exclusive right to make major decisions affecting the child’s health, education and welfare. See Joint Legal Custody. Legal custody does not necessarily control who has physical custody of a child. |
| Spousal Disqualification | A statute in Massachusetts that prohibits the admissibility into evidence of conversations between spouses except in certain instances, such as the presence of a third party who heard and understood what was said. See Rules of Evidence. |
| Standard of Proof | See Preponderance of the Evidence. |
| Status Conference | Court proceeding before trial that permits the parties to report to the judge what has transpired and what may need to be done to resolve the case. See Case Management Conference, Review Date and Pre-trial Conference. |
| Stay of Proceedings | A procedure to prevent the enforcement of an order or judgment; usually the time for an appeal must expire before enforcement will occur; otherwise, a party must file a written request or motion to stay proceedings. |
| Sua Sponte | See Orders. |
| Subpoena | A document issued under rules of court demanding and compelling the appearance of a party or witness at a deposition or court hearing. See Deposition. |
| Subpoena duces tecum | A subpoena or document issued under rules of court demanding and compelling the appearance of a party or witness at a deposition or court hearing, and also demanding the production of certain documents listed on a Schedule attached to the subpoena. See Subpoena. |
| Summons | Official document issued by the court that informs the defendant (party being sued) that a court case has been initiated. The summons may be served (delivered) to the defendant by constable, deputy or other disinterested party. In many instances the plaintiff’s lawyer will invite the defendant to “accept service”, that is to sign the papers at the defendant’s lawyer’s office or other convenient location. See Contempt Summons. |
| Supreme Judicial Court | Highest court in Massachusetts. |
| Survival | As applied to Separation Agreements or Marital Settlement Agreements, the terms of which may be incorporated by a court into its judgment of divorce or separate support, but permitted to survive the judgment, as well, creating a dual status for the agreement that for all practical purposes, makes it extremely difficult to modify by future court order. Alimony terms, for example, may survive. Courts typically refuse to allow child-related provisions to survive, because those terms should remain modifiable upon a material change. |
| Taxation and Divorce | See Alimony and Child Support. See also IRS Publication 504 “Divorced or Separated Individuals.” |
| Time Standards | Court rules regarding the amount of time parties and courts have to complete a legal proceeding. |
| Trials | Sometimes referred to a the “hearing on the merits” or an “evidentiary hearing” when parties and other witnesses take the stand and testify under oath, subject to cross examination. There is no right to a jury trial in divorce proceedings in Massachusetts. Trials are conducted before a judge and are called “bench trials” to distinguish them from “jury trials.” At the conclusion of the trial, a judge will enter findings of fact, rulings of law, final orders and a judgment of divorce nisi. See Judgment of Divorce. |
| Trustee Process | Action allowed under rules of court that permit a party seeking a divorce, for example, to name a bank or other financial institution or person as a party to a special action to secure assets or funds in the name of the defendant. See Automatic Restraining Order. |
| Unbundling of Legal Services | Concept that allows lawyers to work on a portion of a case without assuming responsibility for the entire case. For example, a client may hire a lawyer to prepare a Marital Settlement Agreement, and for no other purpose. |
| Uniform Child Custody Jurisdiction | A so-called uniform law on where child custody cases should be decided. Each state has its own version of the uniform law. |
| Uniform Laws | So-called uniformity of laws across the country. The laws actually vary by state. See for example the Massachusetts version of the Uniform Interstate Family Support Act, Massachusetts General Laws Chapter 209D. |
| Venue | The county where a law suit is filed. By rule, the parties must file in the county where they last lived together, unless both parties now live in different counties. See Residency and Marital Home. |
| Violence, Cycle of | The cycle of violence usually increases in frequency and degree of rage and violence over time, and may lead to serious injury or death of the victim. See Batterer and Abuse Prevention Order. |
| Visitation | Older term now more commonly included under the more neutral term, Parenting Plan, dealing with the time each parent spends with children under the age of eighteen (minors). See Emancipation and Parenting Plan. |
| Vital Statistics | Records kept by governmental bodies relative to births, deaths, marriages, divorces, etc. The Massachusetts Registry of Vital Records is authorized to maintain and provide certified copies of records. |
| Wage Assignment | Means by which a paying parent’s wages may be withheld by the employer and forwarded automatically to the Child Support Enforcement unit of the Massachusetts Department of Revenue for disbursement to the recipient parent or guardian. |
| Waiver of Privilege | Term applied to situations involving a minor child as patient of a psychotherapist. The court will usually appoint a guardian ad litem for the sole purpose of finding out whether the benefit outweighs the harm in waiving the privilege. See Guardian ad Litem and Privilege. |