COMMON WORDS AND PHRASES USED IN TEXAS FAMILY COURTS
If you have questions about Divorce, Family Law, or the common words and phrases that are used in family law courts and documents, please feel free to call Ken Crain to discuss your questions on the telephone at 512-869-0131.
ADR Statement - Alternative Dispute Resolution Statement. A written statement to the court that you will try to resolve the issues in the divorce between you and your spouse before asking the Judge to make a decision. In the past, you were required to attach this document to the original divorce petition when it was filed with the district clerk to initiate the divorce proceedings in Texas. This is no longer required.
Affidavit of Inability to Pay Court Costs - A sworn statement of your income, assets and expenses. This statement is filed in order to attempt to avoid having to pay the normal filing fees that are due when you file certain documents like a Divorce Petition, a Counter-Petition for Divorce, or a Suit Affecting the Parent-Child Relationship with the local district clerk. Most counties will scrutinize this carefully to make sure that you are truly unable to pay the court costs and you are not simply trying to save some money at the county's expense. The overwhelming majority of people who file cases in Williamson County courts are going to have to pay the court costs.
Alternate Payee - A spouse, former spouse, child, or other dependent of a member or retiree who is recognized by a domestic relations order as having a right to receive all or part of the benefits payable by a retirement system with respect to current or previous employment of such member or retiree.
Amicus Attorney - An Attorney appointed by the court to represent the best interest of the child.
Arrearage - Money that was court ordered to be paid and is overdue and unpaid. This term is commonly used to describe child support that is overdue and unpaid. In child support cases, the amount in arrearage can grow to many thousands of dollars over time if the obligor does not comply with a child support payment order.
Attorney Ad Litem - An Attorney appointed by the court to represent the wishes of the child the same as the attorney would for an adult client. The rules of confidentiality and undivided loyalty apply.
Binding Agreement - An agreement between the parties that is signed by both of them, and is often also filed with the court. It is enforceable as a contract and the Judge may decide to make the agreement enforceable as a court order.
Child Support - Money paid by one parent to the other parent to help financially support the child.
Collaborative Law - A method of alternative dispute resolution where all parties agree to resolve their disagreements without going to court for contested hearings. Each person hires his or her own attorney and everyone works together in a series of meetings to reach an agreement.
Community Property - Property acquired by either party during the marriage that is not separate property.
Community Debt - Debts that occurred during the marriage.
Conservatorship - A court order deciding where a child will live and the rights each parent will have to make various decisions regarding the child. Conservatorship is also known as "custody."
Court Administrator- The person who works for the Judge assigned to your case. He/she manages the judge's calendar and assigns hearing dates if requested to do so by an attorney or by a party to the case.
Court Reporter - The person who works for a judge who types and/or makes a record of everything said during a court hearing in the courtroom. The court reporter will prepare a written record of all or part of the courtroom testimony for you for a fee. Most court reporters will require you to pay an up front deposit to cover the costs of preparing a transcript before they will prepare a transcript for you.
Custodial Parent (also known as Sole Managing Conservator or Primary Joint Managing Conservator) -- The parent who has the legal right to determine the primary residence of the child, subject to any geographic restrictions agreed to by the parties and/or ordered by the Court.
Decree - Also known as the Final Decree of Divorce. The legal document signed by the Judge that grants the divorce and describes the specific terms of the divorce. Many people do not realize that judges do not personally draft final decrees. Your attorney will draft a final decree and present it to you for your approval. If you have an uncontested divorce, one of the attorneys involved will draft the decree and both attorneys and both parties will sign it showing that they approve of the draft of the decree. (If you have had a contested hearing, one of the attorneys will draft a decree to reflect the Court's decisions at the end of the hearing and will present it to the other side so that they will have a chance to see if the draft accurately reflects the Court's decisions in the case.) After all the parties have approved of the draft, the judge will sign the Decree when it is finished and it will be filed with the District Clerk. You can get a copy or a certified copy of your divorce decree from the district clerk. Obviously, the Final Decree is a very important document and you should hang on to it and be very familiar with its contents, especially if you have children.
District Clerk - Maintains the official court records for the county in family law cases. The district clerk's office receives all court papers and keeps the divorce files. (The district clerk is not the same office as the county clerk in Texas. The county clerk handles birth records, marriage records, death certificates, real estate records, misdemeanor criminal court files, some civil court files, and other matters. The District Clerk handles files for family law cases such as adoptions, divorces, name changes, etc.)
Divorce - The legal end of the marriage relationship. An interesting fact is that you are not allowed to get married to another person in Texas until at least 30 days have passed since the date of the divorce (usually the date a judge signs the final decree of divorce). For most people, getting married again right away is the last thing they want to do right after they get divorced. Texas law does, however, allow you to remarry the person you just got divorced from without waiting for the 30 days to expire. (I know most of you are thinking: why in the hell would I want to do that???)
(Important Note: One thing many people forget to do right after they get divorced is to amend their Last Will and Testament and amend all of their beneficiary designations for bank accounts, brokerage accounts, credit union accounts, life insurance policies, etc. after they get divorced. Texas law voids all beneficiary designations to a spouse as soon as the divorce is granted. If you still want your former spouse to get something in the event of your death, you need to amend these documents after the divorce and state that you want to give money or property to "Jane Doe, my former spouse," to make sure it is clear you still want to give money or property to your former spouse. If you have children together with this former spouse, it is common to want to give him/her adequate funds after your death to help him/her have adequate funds to provide for your children. Failure to take care of amending these documents soon after a divorce could result in a costly and unnecessary court battle after your untimely death to try to figure out what to do with your property after your death.)
Docket Number - The number given to your case by the district clerk's office at the time of initial filing that specifically identifies your case. (This number is also known as the Cause Number or Case Number.) In Williamson County, the first two digits tell you what year the divorce petition was filed in, the next part tells you the sequence your divorce petition (or other family law case) was filed during the calendar year starting at 0001 on the first business day in January of each year. The last part of the cause number tells you what court your case has been assigned to. For example, -FC1, -FC2, -FC3, and -FC4 tells you this is a family law case assigned to County Court at Law Number One, Two, Three, or Four. F395 tells you this case has been assigned to the 395th District Court. F425 tells you this case has been assigned to the 425th District Court.
Domestic Relations Order - Any judgment, decree, or order, including approval of a property settlement agreement, which relates to the provision of child support, child visitation, spousal maintenance (also known as alimony) payments, or marital property rights to a spouse, former spouse, child, or other dependent of a member or retiree, and is made pursuant to a domestic relations law, including a community property law of the State of Texas or of another state.
Dual Role Attorney - An Attorney appointed in a suit by a judge to represent both the child's wishes and the child's best interest.
Employer's Order to Withhold - A court order to deduct child support payments from someone's employment wages. All Texas child support court orders must include an Employer's Order to Withhold. This wage withholding order will be served on the Obligor's employer so that child support will be automatically withheld and sent to an office in San Antonio for forwarding to the parent who is designated to receive child support. You can usually get a Temporary Child Support Order to provide for child support while the divorce is pending. In a case involving children, an Employer's Order to Withhold is almost always signed at the same time that a Final Decree of Divorce is signed by the judge. In my opinion, you always want a child support withholding order to be served on the employer so that payments are automatically deducted from a paycheck BEFORE the employee even gets his/her hands on the money. The other advantage is that a neutral state agency will keep track of HOW MUCH child support has been paid and WHEN it was paid so that the parties themselves do not have to keep track of it. If need be, you can get a copy of the payment history from the agency to show a judge that your former spouse has fallen behind on payments.
Evidence - Proof given to the court that is usually in the form of sworn testimony of a party or other witness or else some type of written documentation that tends to prove something. A common misconception is that oral sworn testimony is not proof of a fact or is not evidence at all because there are often two or more versions of "the facts." To the contrary, oral sworn testimony is frequently the most important evidence that a Court hears in a case. Judges (like most of us) can use their experience and other available information to tell if someone is telling them the truth.
Filing - Giving the district clerk your legal papers. Some documents require the payment of a filing fee, some do not. When the district clerk files your court papers, he/she will file stamp them with a date/time stamp to prove the paper was filed. You should provide an extra copy at the time of filing so the district clerk can file stamp your copy (and immediately hand it back to you) to show that the original document was filed. IT IS ALWAYS A GOOD IDEA TO KEEP A FILE MARKED COPY OF ANYTHING THAT YOU FILE WITH THE DISTRICT CLERK. Lawyers in Texas now are required to Efile documents with the district clerk over the internet and they can Efile documents even when the district clerk's office is closed.
Geographical Restriction - A restriction on where the children can live. If the parties do not agree on a geographical restriction such as Williamson County, Williamson County and contiguous counties, within a specific school district or within the city limits of a specific city, then the Court will likely impose a geographical restriction of its own choosing to ensure that the custodial parent cannot move away from the area and thereby greatly decrease the visitation opportunities of the non-custodial parent.
Guardian Ad Litem - A person appointed by the court to represent the best interests of a child.
Insupportability - The most common reason given for a no-fault divorce in Texas. This means that the marriage has become insupportable because of discord or conflict of personalities between the parties that has destroyed the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation. For other grounds for divorce in Texas, click here.
Joint Managing Conservatorship - Also known as Joint Custody. A court order stating both parents have equal rights and duties to make decisions regarding the child. The devil is in the details, however. A properly drafted divorce decree will state whether one or both parents have the following rights (among others), for example:
1. the right to receive information from the other parent concerning the health, education, and welfare of the children;
2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;
3. the right of access to medical, dental, psychological, and educational records of the children;
4. the right to consult with a physician, dentist, or psychologist of the children;
5. the right to consult with school officials concerning the children's welfare and educational status, including school activities;
6. the right to attend school activities;
7. the right to be designated on the children's records as a person to be notified in case of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and
9. the right to manage the estate of the children to the extent the estate has been created by the parent or the parent's family.
Judge - In almost all Texas divorces, the person who hears and makes the final legal decisions in your divorce if the parties cannot reach agreement on all of the issues. If the parties do reach an agreement, then the judge must approve of the settlement before it can take effect. Most judges will approve of any reasonable agreement that is made by the parties, especially if the agreement is written up by an experienced family law attorney. (In Texas, you have the right to request that a jury be selected and empaneled to make certain decisions in family law cases but it is very rare to request a jury to make these decisions because it consumes a lot more attorney time and therefore is much more expensive for the parties involved.)
Law Librarian - The person who maintains legal reference and research materials for public use.
Managing Conservator - The parent who has the legal right to determine the primary residence of the child. Also known as Custodial Parent, Primary Conservator or Primary Joint Managing Conservator.
Mediation - A process to help the parties reach an agreement. In mediation, the parties and their attorneys will meet with the mediator to discuss the unresolved issues in the case and attempt to reach an agreement on all or some of the unresolved issues. Mediation of a family law case usually takes 3-4 hours. For more information on mediation, click here.
Mediator - A neutral person who helps the parties reach an agreement.
Negotiations - An attempt to reach an agreement.
No Fault Divorce - The most common type of divorce, where no one needs to prove that either spouse caused the marriage to end through some misdeed.
Non-binding - A process where no specific result is forced on the parties. There is no penalty if the parties are unable to come to an agreement.
Non-custodial Parent - The parent that does not have the legal right to determine the primary residence of the child. This parent normally is allowed to spend time with the child pursuant to a possession order such as the Standard Possession Order.
Obligor - The parent who is court ordered to pay child support.
Obligee - The parent who receives child support on behalf of the child.
Parties - The husband and wife, and anyone else who has made a court appearance in the divorce. Normally the husband and wife are the only parties to a divorce. If a court has previously involved Child Protective Services, grandparents, some other relative, or a guardian for the children and given them a role in caring for the children, then that entity or person may be involved in the divorce to make sure the children are well cared for in the decree.
Paternity - A court finding that a certain person is legally the father of the child. DNA genetic testing is commonly used to determine paternity now. If a woman claims you are the father of a child and you have some doubt about it, you can request DNA paternity testing to make certain you are the father before you are required to provide support for that child. If you believe you are the father of a child and you want regular visitation so that you can be involved in the child's life, then you can obtain an order requiring the mother and the child to submit to DNA testing along with you to find out if the child is biologically yours so you can establish a parent-child relationship.
If you are married to the child's mother when the child was conceived or born, certain time limits may apply if you want to demand DNA genetic testing as proof that you are (or are not) the biological father. If you have questions about paternity, you will want to discuss your concerns with an experienced family law attorney right away. (Interestingly enough, DNA genetic testing of the mother, child, and alleged father does not say that a man is 100% certain to be the father or is 100% certain NOT to be the father. DNA testing results will commonly state that there is a 99.999999% chance that a man is or is not the father of a child. That is just the way that DNA science and DNA math works. Obviously, the Courts are going to rule in accordance with the results of the paternity test even though 100% mathematical certainty is not there.)
Petition - A legal document that starts your divorce case and tells the court and your spouse that you are asking for a divorce and what you want in the divorce.
Petitioner - The person who files for the divorce.
Possession Order - Also known as "visitation" or "access." A court order stating the specific days and times a noncustodial parent may spend time with the child. For detailed information on a Standard Possession Order in Texas, click here.
Possessory Conservator - Also known as the non-custodial parent. The parent who does not have the legal right to determine the primary residence of the child.
Primary Conservator - The parent who has the legal right to determine the primary residence of the child. Also known as the Custodial Parent, the Managing Conservator or the Primary Joint Managing Conservator (JMC).
Process Server - A person approved by the court who gives official legal notice to another person by giving him/her an official copy of a court document and by then certifying to the Court that the court document was delivered to the correct person at a specific date and time. Some process servers work for a private business and some work for a sheriff or a constable. Local process servers charge about $75 to effect service. You can make sure that the papers get served promptly by the process server by providing good information about when and where the Respondent can be served. You can avoid the need for a process server by preparing and filing a waiver of citation or an original answer executed by the Respondent.
Pro Se - Representing yourself without an attorney. This is rarely a good idea in a family law case. There are lots of rules of evidence, rules of procedure, court policies, and statutory laws that you need to be aware of to effectively represent someone in a family law case. Be smart and hire an experienced family law attorney to help you with your case.
Prove Up - The process of finishing your divorce in front of the Judge at an uncontested court hearing. At the "prove up", one or both of the parties briefly testifies and recites the required information to the court. The Judge then has the discretion to approve the terms of the divorce, grant the divorce and/or make any other orders the Judge believes are appropriate.
Psychological Evaluation - A court ordered evaluation of a person involved in the lawsuit. The evaluation is conducted by a licensed psychologist who will provide a written report to the court.
Psychiatric Evaluation - A court ordered evaluation of a person involved in the lawsuit. The evaluation is conducted by a psychiatrist who will provide a written report to the court.
QDRO - Qualified Domestic Relations Order - A domestic relations order signed by the judge which creates or recognizes the existence of an alternate payee's right or assigns to an alternate payee the right to receive all or a portion of the benefits payable with respect to a member or retiree under a private or public retirement plan, which directs the private or public retirement plan administrator to disburse benefits to the alternate payee.
A QDRO is usually required before retirement benefits can go to someone other than the person who earned them through employment. Most plan administrators who run the retirement plans are very demanding about the language used in the QDRO to make sure that it meets their requirements and applicable federal and state laws. Many family law attorneys hire an expert to draft a QDRO in their cases. It is foolhardy for a pro se party to try to draft a QDRO for their own case.
It is frequently best to obtain a model QDRO form online or from the plan administrator for the specific retirement plan that is being divided. After you complete the form, the judge will sign it at the time the divorce decree is signed. The QDRO is then forwarded to the plan administrator for approval. If the QDRO is not approved by the plan administrator, then it will need to be amended and signed again by the judge and then resubmitted to the plan administrator.
Respondent - The spouse of the person who filed a petition for divorce.
Retroactive Child Support - Child support that was not previously ordered, but should have been paid at a time after the child was born and after the parties were separated.
Return - Also called a Sheriff 's Return. An affidavit signed by a sheriff or official process server stating the date and time he provided legal notice to the other party, or the reason as to why he was unable to provide legal notice to the other party. The return is filed with the Court to prove to the judge that the Respondent received notice that the lawsuit was filed. If you ever get served with legal papers, your first step should be to read them immediately and to show them to an experienced attorney so that you can properly respond by the required deadline.
Separate Property - Property that a spouse owned prior to the marriage, or property that was given to the spouse as a gift or inheritance. In Texas, property is either separate property or community property.
Service - The legal method for giving your spouse a copy of the divorce petition. Out of simple fairness, a judge will require that your spouse be made aware that a divorce petition has been filed before the judge will act on the divorce petition (except in cases of emergency). In many uncontested divorces, one spouse will simply hand a copy of the petition to the other spouse and the Respondent will file an Original Answer or other document waiving his/her right to be formally served with the petition. This will save money and the embarrassment of being served at work in front of other employees or at home in front of the neighbors, etc.
Settlement - An agreement reached between the parties.
Social Study - A court ordered investigation of the circumstances and home life of the parents and the child. The social study is usually conducted by a social worker. The social worker will let you know about the cost at the time the social worker is retained to conduct the social study.
Sole Managing Conservatorship - Also known as sole custody. A court order stating one parent has more rights and duties regarding the child than the other parent.
Spousal Maintenance - Also called "spousal support" or "alimony." This is money a court requires one spouse to pay to the other spouse for support during the pendency of a divorce and/or after the divorce is granted. Texas has some restrictions on how long this can be ordered and how much can be ordered and under what circumstances it can be ordered.
Standard Possession Order - A specific possession schedule designed by the Texas Legislature and found to be in the best interest of the child in most circumstances. For detailed information on a Standard Possession Order in Texas, click here.
Temporary Orders - Court orders that are in effect during the pendency of a divorce. Temporary orders may address any issues that need to be dealt with while a divorce is pending, such as custody, visitation, child support, use of property (such as a house or an automobile), temporary spousal maintenance, and responsibility to pay debt while the divorce is pending. The parties can agree to Temporary Orders and have the judge sign them OR you can have a contested temporary orders hearing and have the judge decide what the temporary orders will be. After the contested hearing, one of the attorneys will be instructed to draft the temporary orders and present them to all parties for approval before they are signed by the judge who conducted the temporary orders hearing and made rulings at the conclusion of the temporary orders hearing.
Temporary Mutual Injunction - Also known as a Mutual Injunction. A common order contained in Temporary Orders in a divorce that prohibits the parties from destroying or transferring any community property, incurring further debts, and prohibiting any type of harassment to the other party or the child.
Temporary Restraining Order - Also known as a TRO. A common order at the beginning of a divorce that prohibits the other spouse from doing anything to transfer or destroy the property of the marriage or to cause harassment to the other spouse or the child.
Waiver of Service - A legal document, signed by the Respondent in the presence of a notary, that states that he/she accepts receipt and legal notice of the Petition for Divorce without an official process server or sheriff or constable officially giving it to him/her. The waiver of service may also have other legal consequences depending on what is stated in the waiver. You should be very careful not to sign a waiver that allows the other party to do whatever he/she wants in the divorce without consulting you any further at all. I call this a "blank check" waiver of citation. My advice is to consult with an attorney if you are asked to sign a Waiver of Service to make sure you know the legal consequences of signing the document.
If you live in Central Texas and you have family law questions, please feel free to call Ken Crain at 512-869-0131. I am here to help.