As you review the pages of this website you will undoubtedly come across words and terms that are unfamiliar to you. We provide the following index of legal terms to assist you in better understanding the laws which may affect you in hopes of making this website more useful to you. This list was compiled by using a variety of Internet sources as well as Black's Law Dictionary.
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Abandonment - “Abandonment” as cause for divorce must be willful and intentional without intention of returning, and without consent of spouse abandoned. This ground is commonly termed “desertion” in state divorce statutes.
Abandonment - One spouse abandons the other where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it.
Absolute Divorce - Dissolving the marriage tie, and releasing the parties wholly from their matrimonial obligations.
Adoption - Legal process pursuant to state statute in which a child’s legal rights and duties toward his natural parents are terminated and similar rights and duties toward his adoptive parents are substituted.
Adoption Decree - Effects a complete substitution of families for all legal purposes.
Adoption Decree - Establishes the relationship of parent and child between each petitioner and the individual being adopted.
Adoption Decree - Severs the relationship of parent and child between the individual adopted and the individual’s biological or previous adopted parents.
Adoption Petition – A petition filed in an adoption proceeding seeking the courts to grant an adoption to a perspective adoptive parent.
Adultery - Voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife, or by a person with a person who is married to another.
Affidavit - A written or printed declaration or statement of facts, made voluntarily, and confirmed by oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.
Affidavit of Parentage - To assist the court in determining that a direct placement was valid and all necessary consents have been obtained.
Agency Placement - An agency may acquire legal and physical custody of a minor for purposes of adoptive placement.
Alienation of Affections - Action of “alienation of affections” is a tort based upon willful and malicious interference with marriage relation by third party without justification or excuse.
Alimony - Means payments for the support and maintenance of a spouse, either by lump sum or on a continuing basis. Alimony is paid by the “supporting spouse” to the “dependent spouse".
Alternative Dispute Resolution - Procedures for settling disputes by means other than litigation.
Answer - The response of a defendant to the plaintiff’s complaint, denying in part or in whole the allegations made by the plaintiff. A pleading by which defendant endeavors to resist the plaintiff’s demand by an allegation of facts, either denying allegations of plaintiff’s complaint or confessing them and alleging new matter in avoidance, which defendant alleges should prevent recovery on facts alleged by plaintiff.
Appeal - Resort to a superior court to review the decision of an inferior court or administrative agency.
Arbitration - A process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. Where the arbitration is voluntary, the disputing parties select the arbitrator who has the power to render a binding decision.
Arbitrator - A neutral person either chosen by the parties to a dispute or appointed by a court, to hear the parties claims and render a decision.
Assault - Any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm.
Attorney’s Fees - The traditional “American Rule” is that attorney fees are not awardable to the winning party (each litigant must pay his or her own attorney fees) unless statutorily or contractually authorized; however, exceptions exist in that an award may be made to successful party if the opponent has acted in bad faith.
Attorney-client Privilege - In law of evidence, client’s privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between he and his attorney. Such privilege protects communications between attorney and client made for purpose of furnishing or obtaining professional legal advice or assistance.
Attorney work product - written materials, charts, notes of conversations and investigations, and other materials directed toward preparation of a case or other legal representation. Their importance is that they cannot be required to be introduced in court or otherwise revealed to the other side. Sometimes there is a question as to whether documents were prepared by the attorney and/or the client for their use in the case preparation or are documents which are independent and legitimate evidence.
Binding Arbitration – A form of alternative dispute resolution whereby the parties agree in advance to select a single or board of arbitrators to hear the evidence and render a binding decision for the parties; a process sometimes referred to as a privatized court proceeding without the need of the court or a judge.
Breach of Contract - failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work ("anticipatory breach"). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered "specific performance" of the contract.
Case Law - reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law," which is the statutes and codes (laws) enacted by legislative bodies; "regulatory law," which is regulations required by agencies based on statutes; and in some states, the common law, which is the generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations.
Certificate of Service – A document certifying that a particular pleading or order has been provided to the opposing party as of a certain date; required in many jurisdictions in order to designate and establish whether parties have met certain time requirements.
Certifying Officer – A person who typically certifies the validity of an actual document or pleading.
Child Support - court-ordered funds to be paid by one parent to the custodial parent of a minor child after divorce (dissolution) or separation. Usually the dollar amounts are based on the income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. In many states or locales the amount is determined by a chart which factors in all these figures. It may also include health plan coverage, school tuition or other expenses, and may be reduced during periods of extended visitation such as summer vacations. Child support generally continues until the child reaches 18 years, graduates from high school, is emancipated (no longer lives with either parent), or, in some cases, for an extended period such as college attendance. The amount and continuation of support may be changed by the court upon application of either party depending on a proved change of circumstance of the parents or child. Child support should not be confused with alimony (spousal support) which is for the ex-spouse's support. Child support is not deductible from gross income for tax purposes (but may allow a dependent exemption) nor is it taxed as income, unlike alimony, which is deductible by the payer and taxed as the adult recipient's income.
Civil Contempt - A species of contempt of court which generally arises from a willful failure to comply with an order of court such as an injunction as contrasted with criminal contempt which consists generally of contumelious conduct in the presence of the court.
Civil Damages - the amount of money which a plaintiff (the person suing) may be awarded in a lawsuit. There are many types of damages.
Civil Suit - any lawsuit relating to civil matters and not criminal prosecution.
Civil Summons - a document issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff's attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), usually with a form on the back on which information of service of summons and complaint is to be filled out and signed by the process server. A copy of the summons must be served on each defendant at the same time as the complaint to start the time running for the defendant to answer. Certain writs and orders to show cause are served instead of a summons since they contain the same information along with special orders of the court. After service to the defendants, the original summons, along with the "return of service" proving the summons and complaint were served, is filed with the court to show that each defendant was served. A summons differs from a subpoena, which is an order to a witness to appear.
Claim - to make a demand for money, for property, or for enforcement .
Clear and Convincing Evidence - evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond the "reasonable doubt" needed to convict in a criminal case.
Clerk - an official or employee who handles the business of a court or a system of courts, maintains files of each case, and issues routine documents. Almost every county has a clerk of the courts or County Clerk who fulfills those functions, and most courtrooms have a clerk to keep records and assist the judge in the management of the court. 2) a young lawyer who assists a judge or a senior attorney in research and drafting of documents, usually for a year or two, and benefits in at least two ways: learning from the judge or attorney and enjoying association with them. Law clerks for judges, particularly on the Courts of Appeal and the Supreme Court, are chosen from among the top students graduating from law school.
Clerk of court - an official or employee who handles the business of a court or a system of courts, maintains files of each case, and issues routine documents. Almost every county has a clerk of the courts or County Clerk who fulfills those functions, and most courtrooms have a clerk to keep records and assist the judge in the management of the court. 2) a young lawyer who assists a judge or a senior attorney in research and drafting of documents, usually for a year or two, and benefits in at least two ways: learning from the judge or attorney and enjoying association with them. Law clerks for judges, particularly on the Courts of Appeal and the Supreme Court, are chosen from among the top students graduating from law school.
Cohabitation - living together in the same residence, generally either as husband and wife or for an extended period of time as if the parties were married. Cohabitation implies that the parties are having sexual intercourse while living together, but the definition would not apply to a casual sexual encounter. Legal disputes have arisen as to whether cohabitation would refer to same sex partners, which is important to those involved since "cohabitation" is the basis of certain rights and privileges under various laws, regulations and contracts. The findings of the courts vary on this question, but the trend is to include long-standing homosexual relationships as cohabitation.
Collaborative Law - Collaborative practice is designd to minimize conflict while working toward the resolution of legal matters. Parties, their attorneys and any other professional involved, agree to make a good faith attempt to reach a mutually acceptable settlement without going to court.
Compensatory Damages- damages recovered in payment for actual injury or economic loss, which does not include punitive damages (as added damages due to malicious or grossly negligent action).
Complaint - the first document filed with the court (actually with the County Clerk or Clerk of the Court) by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. Complaints are pleadings and must be drafted carefully (usually by an attorney) to properly state the factual as well as legal basis for the claim, although some states have approved complaint forms which can be filled in by an individual. A complaint also must follow statutory requirements as to form. For example, a complaint must be typed on a specific type of paper or on forms approved by the courts, name both the party making the claim and all defendants, and should state what damages or performance is demanded (the prayer). When the complaint is filed, the court clerk will issue a summons, which gives the name and file number of the lawsuit and the address of the attorney filing the complaint, and instructs the defendant that he/she/it has a specific time to file an answer or other response. A copy of the complaint and the summons must be served on a defendant before a response is required.
Consent - a voluntary agreement to another's proposition; to voluntarily agree to an act or proposal of another, which may range from contracts to sexual relations.
Consortium - the marital relationship, particularly sexual intimacies, between husband and wife. Consortium arises in a lawsuit as a claim of "loss of consortium." Often it means that due to one spouse's injuries or emotional distress he/she cannot have sexual relations for a period of time or permanently, which is a loss to the mate for which he/she should be awarded damages.
Continuance - a postponement of a date of a trial, hearing or other court appearance to a later fixed date by order of the court, or upon a stipulation (legal agreement) by the attorneys and approved by the court or (where local rules permit) by the clerk of the court.
Contract - an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration.
Courts - the court system which handles civil and criminal cases based on jurisdictions enumerated in the Constitution and federal statutes.
Criminal Contempt – a claim or determination pursuant to North Carolina General Statutes Chapter 5; as differentiated from civil contempt. A ruling of criminal contempt typically results in the party being sentenced to a term in jail and/or a penalty paid to the court.
Criminal Conversation - sexual intercourse of an outsider with husband or wife, or a breaking down of the covenant of fidelity. A tort action based on adultery.
Cross-Examination - at trial, the opportunity to question any witness including your opponent, who testifies against you on. Typically, there are two important reasons to engage in cross-examination: to attempt to get the witness to say something helpful to your side, or to cast doubt on the witness by getting her to admit something that reduces her credibility -- for example, that her eyesight is so poor that she may not have seen an event clearly
Cruel and Barbarous treatment – the intentional and malicious infliction of mental and physical suffering on someone.
Date of Distribution (DOD) – The date that the court orders or the parties, via agreement, distribute their marital estate.
Date of Marriage (DOM) – The official date the parties are wed.
Date of Separation (DOS) – The date the parties separated from each other with the intent not to reconcile or live together.
Defendant - the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution.
Desertion - the act of abandoning, particularly leaving one's spouse and/or children without an intent to return.
Direct Placement – when a child is placed for adoption by his or her parent or legal guardian directly rather than through an adoption agency or other independent entity.
Discovery - the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination).
Dissolution - modern, gentler sounding, term for divorce.
Distributional Factors – Factors utilized in North Carolina by the courts when making a determination of property distribution; see the discussion on this site regarding equitable distribution for a specific listing of these factors.
Divisible Property – the passive appreciation or dimunition in marital property created after the parties’ date of separation and before the date of distribution. Divisible property includes property or property rights which are received after the date of separation but before the date of distribution as a result of efforts prior to the date of separation. Finally, increases in marital debt, financing charges and interest related to marital debt, is a form of divisible property, and thus subject to Equitable Distribution.
Divorce - the termination of a marriage by legal action.
Divorce from Bed and Board – This claim is rare and limited to the accomplishment of three things: 1) forcing the opposing spouse to move from the former marital residence, 2) obtaining judicial authorization for separation, or 3) allowing the party an avenue to allege marital misconduct which is otherwise irrelevant to the proceedings. In fact, a divorce from bed and board is really nothing more than a judicial separation for two parties who refuse to separate.
Domestic Case – A lawsuit involving husbands and wives and/or parents of children.
Domestic Violence Protective Order – In its simplest form, a 50B protective order requires the abuser to stay away from and to not assault, threaten, or harass the victim and her children. It can also provide other types of relief, including granting a party possession of the residence, requiring a party to provide a spouse and his or her children suitable alternative housing, or temporary custody of children and establish a “temporary safe visitation plan,” order either party to make child support or spousal support payments, or order the party evicted from the residence.
Domiciled - person’s fixed, permanent address or home, to which the person intends to return and inhabit even if the person resides elsewhere for a while.
Emergency Ex-parte Order - order granted by a judge in an emergency situation with only one party present. Such order is limited in duration and a court will generally review a temporary emergency custody order within ten days, at which time the other side has the opportunity to challenge the ex-parte order.
Equitable Distribution – the process in North Carolina whereby a court identifies values and distributes the property of a husband and wife.
Equitable Distribution Affidavit – a detailed listing of the assets and debts of husband and wife in the form of an affidavit.
Evidence - every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. It can include oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and depositions (testimony under oath taken before trial). It also includes so-called "circumstantial evidence" which is intended to create belief by showing surrounding circumstances which logically lead to a conclusion of fact. Comments and arguments by the attorneys, statements by the judge and answers to questions which the judge has ruled objectionable are not evidence. Charts, maps and models which are used to demonstrate or explain matters are not evidence themselves, but testimony based upon such items and marks on such material may be evidence. Evidence must survive objections of opposing attorneys that it is irrelevant, immaterial or violates rules against "hearsay" (statements by a party not in court), and/or other technicalities.
Exemplary Damages - often called punitive damages, these are damages requested and/or awarded in a lawsuit when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton or grossly reckless.
Ex-parte Hearing – This is a hearing when the opposing party is not present in the courtroom. In the context of a domestic violence case, this is a hearing without the alleged abuser present.
Expert - a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects.
Facilitator – In an adoption case, an adoption facilitator is an individual or non-profit entity that assists the biological parents in locating and evaluating perspective adoptive parents.
Felony - a crime sufficiently serious to be punishable by death or a term in state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail and/or a fine.
50B Complaint – A complaint referencing Chapter 50B of the North Carolina General Statutes which deals with the issuance of a domestic violence protective orders.
50B Order - An order granted by a judge based on the provisions set forth in North Carolina General Statute Chapter 50B referencing domestic violence protective orders.
Final Pre-Trial Equitable Distribution Conference – This is a conference attended by the parties and their attorneys if the parties do not settle their Equitable Distribution claims between the time of the Initial Pre-Trial Conference and the Equitable Distribution trial.
Final Pre-Trial Equitable Distribution Order – detailed order that is completed prior to an equitable distribution trial and presented to and approved by the presiding judge.
Fraud - the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right.
Guardian - a person who has been appointed by a judge to take care of a minor child or incompetent adult (both called "ward") personally and/or manage that person's affairs. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor's welfare will petition the court to appoint the guardian. In the case of a minor, the guardianship remains under court supervision until the child reaches majority at 18. Naming someone in a will as guardian of one's child in case of the death of the parent is merely a nomination. The judge does not have to honor that request, although he/she usually does.
Hearing - any proceeding before a judge or other magistrate (such as a hearing officer or court commissioner) without a jury in which evidence and/or argument is presented to determine some issue of fact or both issues of fact and law. While technically a trial with a judge sitting without a jury fits the definition, a hearing usually refers to brief sessions involving a specific question at some time prior to the trial itself, or such specialized proceedings as administrative hearings. In criminal law, a "preliminary hearing" is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial.
Inclination and Opportunity – Although there is no certain definition for this term, it could generally be defined as either circumstantial or physical evidence that shows that two people had the ability and the wherewithal to commit adultery or to have sexual relations within a certain time period.
Incurable Insanity – When the mental impairment is to such an extent that the person does not understand what he or she is engaged in doing, and the nature and consequences of the act.
Indigent –1) a person so poor and needy that he/she cannot provide the necessities of life (food, clothing, decent shelter) for himself/herself. 2) n. one without sufficient income to afford a lawyer for defense in a criminal case. In certain criminal cases, if the court finds a person is an indigent, the court must appoint a public defender or other attorney to represent him/her.
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