Common Legal Terms

Common Legal Terms in a New York Uncontested Divorce

If you are seeking to dissolve your New York State marriage through and uncontested divorce, your uncontested divorce lawyer will be preparing an entire packet of forms and information for the divorce court. There will be terms and language that are foreign to you. While you do not have to become an expert in this terminology as our White Plains, NY uncontested divorce lawyers and attorneys are, it is good to understand and have a reference for some of the more common phrases and terms. Below is a glossary of common legal terms you will come across when executing an uncontested divorce.

A ground for divorce. Abandonment occurs when your spouse has left the Plaintiff continuously, for a period of one year or more, without the Plaintiff’s consent.

An attachment to a pre-existing set of documents. Things such as charts and schedules are asserted in addendums.

A ground for divorce. Adultery is any sexual act or deviate sexual act with a partner other than your spouse.

Affidavit of Service
A sworn statement that you, your lawyer, or another 3rd party on your behalf served documents on your spouse. The person who actually did the service completes the affidavit of service under oath and penalty of perjury.

Ancillary Relief
Additional or supplemental relief such as custody, child support, etc.

The responsive document a spouse files upon receiving papers, called either a “summons and complaint” or a “summons with notice,” for an uncontested divorce.

Calendar Number
This number is assigned by the court to an action upon the filing of the papers for divorce with the court. Also called an index number.

Live together as husband and wife.

The document served on your spouse to commence and uncontested divorce. The complaint is always accompanied by a summons to court, so it is most often referred to as the “summons and complaint”

Constructive Abandonment
A ground for divorce. Constructive Abandonment occurs when the Defendant has refused to engage in sexual relations with the Plaintiff, continuously for one year or more, without the Plaintiff’s consent.

Contempt of Court
Willfully violating an order of the court. Sanctions often include fines and incarceration.

Contested Divorce
A divorce action in which the spouses do not agree to the terms of the divorce so they make their case before the trial judge who issues a decision and order as to the terms of the divorce. This includes everything such as child custody and support, possession of the home and other property, splitting of the assets, etc.

3rd party evidence which supports a party’s statements and arguments with confirming facts or evidence.

A counterclaim is when you commence and uncontested divorce against your spouse and your spouse makes affirmative claims against you in response to your allegations and request for divorce.

County Clerk
The place where the index number is purchased or obtained and also where the papers in the divorce actions are filed. In Westchester County, this office is located in the Supreme Court.

Cruel and Inhuman Treatment
A ground for divorce. Cruel and Inhuman Treatment consists of cruelty, whether physical, verbal, sexual or emotional, committed by the Defendant, against the Plaintiff, that endangers the Plaintiff’s wellbeing and makes living together either unsafe or improper.

Default Judgment
A divorce judgment which is obtained when your spouse fails to respond to the Summons and Verified Complaint or the Summons with Notice within the prescribed time allowed under the law.

The person whom the divorce is initiated against is the defendant. The person who initiates the divorce is the plaintiff. There are not tactical advantages or disadvantages to being either a plaintiff or defendant.

Domestic Relations Law
The “DRL” is the body of the New York State law that states the law to be followed for divorce and other matrimonial actions. DRL § 170 & DLR § 236 are most relevant in an uncontested divorce case.

When a parent is no longer liable for child support. Under New York law, a child is not emancipated, and child support must be paid, until the child reaches the age of 21, the “age of majority.” However, in NYC and Westchester County, the age of emancipation is 23. Prior to reaching the age of majority a child can become emancipated through “emancipation events” such as marriage, entry to the military, or otherwise becomes self-supporting.

Equitable Distribution
The manner in which marital property is required to be divided by law in a divorce action in New York State.

Ex Parte
When one party to a divorce action seeks relief from the court without noticing the other party of the requested relief from the court.

Family Court
The Family Court in New York State is a court of “limited jurisdiction.” While it has the jurisdiction to decide cases involving child support, custody, visitation, spousal support and family offenses (Orders of Protection), the court does not have the authority to hear and decide a divorce case.

Index Number
The number assigned to every action or proceeding commenced within the New York State Supreme Court. The number is used to identify a case throughout the court system in that particular county. The index number is also commonly referred to as the calendar number.

Judgment of Divorce
A document signed by the divorce court granting the uncontested divorce.

The authority of a court to hear a case.

Support paid by one party to the marriage for the support of the other party to the marriage pursuant to a final Judgment of Divorce (sometimes also referred to as “post-divorce maintenance” or “spousal support”

Marital Assets
Any property, regardless of which person is named as owner that is acquired by the spouses from the date of the marriage to the commencement of the divorce action. It includes all property acquired during the marriage except exempt property. A house, car, IRA, joint bank account, pension or annuity are all examples of marital property. Identifying marital from exempt property is key in negotiating an uncontested divorce so that you and your spouse only split what is proper to be divided in the marital estate.

A formal, written request of a court for some type of relief.

Notice of Appearance
A written statement by an attorney to a court that the lawyer is representing, i.e., “appearing on behalf of,” the client.

Notice of Entry
A sworn statement proving to a court that a document or documents that the court ordered a party to serve, file, or do both was in fact done pursuant to the parameters of the court’s requirement.

Nunc Pro Tunc
A Latin phrase of which the literal translation means “then for now.” When a party is seeking retroactive relief, divorce lawyers identify it to the court as relief being sought “nunc pro tunc.”

Order of Protection
An order issued by a court that directs one individual to stop certain conduct, such as harassment, against another individual and that may order the individual to be excluded from the residence and to stay away from the other individual, his or her home, school, place of employment and his or her children.

Order to Show Cause
This is a pleading and a demand for immediate relief all rolled into one. A divorce action can be commenced by order to show cause, or an order to show cause can be brought during a divorce proceeding. An order to show cause is normally used in emergency situations and often seeks some sort of ex parte preliminary injunctive relief.

The spouse who commences the uncontested divorce action. The other spouse is the defendant. There are not tactical advantages or disadvantages to being either a plaintiff or defendant.

The documents that commence an uncontested divorce and define the issues thereto. The main pleading are the complaint, answer, counter claim and notice. An order to show cause is also a pleading.

Removal of Barriers to Remarriage
This form is necessary when the marriage was solemnized in a religious ceremony by a clergyman or minister of any religion. It is a statement by the spouses that they will cooperate in the removal of religious barriers to remarriage.

The document attached to either a complaint for uncontested divorce, or notice for uncontested divorce, which identifies to your spouse the name and address of the court and the return date in which pleading must be filed or appearances must be made.

Summons with Notice
An alternative, simplified way to commence an uncontested divorce action. It is a notice of demand for divorce, and is appropriate in many situations. The lengthier version of commencement of an uncontested divorce is by summons and complaint. Speak to your uncontested divorce lawyer about which method is best in your situation.

Supreme Court
The formal name of the court which has jurisdiction to hear a divorce action. Often referred to as the “divorce court.”

Third Party
A person not one of the spouses seeking the divorce.

Unemancipated Children
Children who must be supported by the spouses of a divorce.

The Supreme Court of NY State is a Unified System. There is one Supreme Court in each County. Venue refers to the particular Supreme Court which has the authority to hear your uncontested divorce case. Generally, it’s the county where at least 1 spouse reside.

Verified Answer
An answer is the Defendant’s response to the Complaint. A verified answer is an answer that is sworn to under oath by the defendant. An answer must be verified if the plaintiff spouse commenced the action with a verified complaint. In other words, if your spouse did not swear to his or her allegations under oath, the defendant does not have to swear under oath in their responsive pleading.

Verified Complaint
The document containing the Plaintiff’s allegations of grounds for divorce sworn to under oath. If the plaintiff commences the divorce proceeding with a verified complaint, any responsive pleadings by the spouse must also be verified; i.e., sworn to under oath.

This list is just a thumbnail sketch of the basic terms of art that you will run across when filing for an uncontested divorce. There are many more shorthand legalese terms that may come into play in an uncontested divorce. We understand that this is all very confusing to the general public. That’s why we offer a free phone consultation. If you have any questions please feel free to pick up the phone and give us a call. We talk with people in your situation every day and we’d love to chat with you.

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