When undergoing a family law action, you should understand basic legal terminology. Whether you are representing yourself pro se (I will explain) or being represented by an attorney, you should understand your basic legal terminology.
This is important. Your statements—written and verbal—may be subject to scrutiny by the court, custody evaluators, opposing parties, and other important people throughout the case. Even if your attorney does not need to use your statement (and it is difficult for your attorney to use an inaccurate statement of facts) to explain your spouse’s statements, the opposing party may use this statement against you. While the likelihood of you being faulted for this mistake in court is slim, the court may not look highly on you or your statements because of your confusing language.
I have provided a common conversation between myself and the average new client to give you an idea of the problems attorneys run into:
Client: “So I’ve already attended mediation with the commissioner…”
Me: “I’m sorry. You attended mediation with the commissioner? You must mean the mediator. You already attended mediation with the mediator.”
Client: “That’s right. So the mediator ordered that I pay child support…”
Me: “Wait, was this was a hearing? In that case, you attended a hearing with the commissioner.”
Client: “But I thought hearings were with a judge?”
Me: “It depends. In a family law action….”
A family law attorney reading this conversation right now is probably laughing. We have all encountered these confusing conversations and, oftentimes, it is so difficult to extract the history of the case from the client’s mouth we give up and go directly to the court docket. A lot of precious time is wasted trying to understand the history of a case when the client does not understand basic legal terminology. Because we attorneys use this language so often in our day-to-day conversations, we often forget that it’s Latin to our clients.
Whether you are going through your first Utah divorce or custody dispute, it is helpful for you to understand basic legal terminology.
Now you may be asking. Why correct my speech. Shouldn’t I, as “the client,” always be right? Is it really a problem if I confuse terminologies? Can’t my attorney do all that for me?
My response: No. No, no, and no. You hire an attorney because you are rarely, if ever, “right.” Your attorney needs to understand you, and the court needs to understand what you’re trying to say. When you are speaking to your spouse or opposing party, you should know basic legal language. Your attorney is present to argue your case for you, but if he/she needs to use a statement you made, it is always helpful to have an accurate statement (rather than explain to the court that you were just “confused.”
I have provided a basic (very basic) explanation of commonly-used phrases throughout a divorce action. While there are many other terms that will arise throughout your case, I have found that the following terms are the most useful for my clients to understand:
Mediator. A mediator conducts mediation. The mediator’s duty is to facilitate communication between parties as a neutral third party. Your mediator should not be an attorney representing one of the parties. If your “mediator” is also your spouse’s attorney, get out of the mediation. Mediators are most helpful when they present different options that are appealing to both parties. A good mediator will explain a proposal so that it is appealing to both parties. (i.e. party says “I want alimony!” while mediator says “He is concerned that he cannot meet his living expenses. He has a shortfall of $500 per month that he believes you are able to meet. He is requesting a settlement of $500 per month in alimony. Let’s talk about this.”)
Mediation. Mediation is a meeting that engages two (often) adverse parties in an attempt to seek a peaceful resolution. Both parties may engage in mediation in the same room, or the mediator may place each party in a different room and travel between rooms to discuss different proposals. Mediations can be very short, particularly when one party refuses to budge forcing the other party to walk out, or they can be very long, particularly when the case has settled and the parties begin drafting their stipulations.
Hearing (proffer hearing). A hearing can take place before a judge or a commissioner; however, in a family law action, the initial hearing—a proffer hearing— takes place before the commissioner under Rule 101 of the Utah Rules of Civil Procedure and an “evidentiary hearing” takes place before the judge should a party object to the recommendations entered at the hearing. At a proffer hearing, your attorney will present the entire argument. Unless you are representing yourself pro se, you do not say anything during this hearing unless expressly given permission by the court and your counsel.
Evidentiary Hearing. After a commissioner has entered his/her recommendations at the hearing, a party may object to those recommendations because of a dispute on the “facts” or the “law.” If one or both parties object to the facts presented at the initial hearing, an evidentiary hearing will take place. At the evidentiary hearing, you may be placed on the stand and examined (either direct examination or cross-examination).
Commissioner. Because there are an excessive number of family law actions, Utah has developed a system to delegate family law actions to commissioners (think of a commissioner to a judge as a store manager to a department manager). Unless the circumstances of your case force you to approach the judge directly (i.e. a Temporary Restraining Order hearings), you will first approach the Commissioner to hold a hearing on your action. Typical hearings before the commissioner may include temporary orders, discovery disputes, protective orders, custody evaluations, and much more. If your attorney is filing a motion on your behalf, the hearing will almost certainly be held before the commissioner.
Recommendations. A commissioner makes recommendations. A judge enters an order. These recommendations are not orders of the court until entered as an order of the court. You have 14 days to object to the recommendations of the commissioner (from the date of the hearing and/or memorandum decision) if you do not believe the commissioner’s recommendations are accurate or appropriate.
Pro Se. If you are representing yourself, you are pro se. While the court will make certain allowances for pro se parties, you will be at a distinct advantage if you are appearing pro se while your spouse using an attorney who knows the ins and outs of court.
Stipulation. More often known as a “Stipulation and Settlement Agreement.” This is an agreement between parties to resolve some or all of their disputes. While a Stipulation and Settlement Agreement is usually binding on the parties, it is not an enforceable order of the court unless drafted as an order, submitted to the court, and signed/entered by the court. While the difference may seem minimal, it is not. Because a Stipulation and Settlement Agreement is not an order, if you fail to draft it as an order then you cannot take the order to the court on an order to show cause to enforce the order. You may have problems with obtaining a Writ of Assistance later on (should custody be at issue). A number of issues may develop that you did not anticipate earlier.
Decree of Divorce. A Decree of Divorce, when entered, dissolves the parties’ marriage. You may never have a Decree of Divorce entered in your case, since some people bifurcate their marriage (particularly in long-term cases). If you are divorced with a decree, it is called a “Decree of Divorce,” not a “divorce decree.” While you will not be penalized by the court or anybody else for calling it a “divorce decree” (your attorney might), you will sound intelligent if you refer to it by its proper title.
Closing Documents. This may just be my legal terminology, but I have heard other attorneys refer to is as such. If your attorney claims he/she will prepare the closing document in your case, he/she should be referring to at least the Decree of Divorce, Findings of Fact and Conclusions of Law, Affidavit/Verified Declaration of Jurisdiction and Grounds, and Affidavit/Verified Declaration Military Service Declaration. If children are involved, you will also need to complete various child custody/support documents (income verification, divorce education and orientation certificates, non-public information on children, etc.). After filing the necessary documents, you should file a Notice to Submit. Once the Notice to Submit has been filed, call the clerk and ensure the court has everything it needs to enter your Decree of Divorce and Findings of Fact and Conclusions of Law.
Temporary Restraining Order. In Utah, a Temporary Restraining Order (“TRO”) is a civil action. Requesting and receiving a TRO allows a party to obtain an order of the court without the other party receiving notice. To obtain a Temporary Restraining Order, you must illustrate by immediate and irreparable injury is likely to occur if you do not obtain the temporary restraining order. A hearing for a permanent restraining order will usually be scheduled a couple of weeks out, and the parties must each abide by a Temporary Restraining Order until then (in a case where a TRO was improperly filed and waiting two weeks would create a serious issue, I was able to vacate it the next day by filing an “Ex Parte Motion to Vacate/Set Aside Temporary Restraining Order” and set it aside the following day). Utah’s “protective order” is often the same thing as a “Temporary Restraining Order” in other states, so do not confuse a Temporary Restraining Order with an Ex Parte Protective Order in Utah.
Ex Parte Protective Order. If you are the victim of abuse, or your child is being abused, you should seek a protective order. Describe the most recent incident of abuse (and it should be fairly recent), as well as any historical incidents of abuse against you or your child. After you receive the protective order (should it be granted based on your claims), your spouse should not contact you or your children until the hearing. If the protective order is upheld at the hearing, you should not be contacted by your spouse for any reason other than what the order allows. In many states, a temporary restraining order is a protective order. Make sure that, if abuse is involved, you seek the appropriate redress.
Verified Declaration. A verified declaration is an unsworn declaration filed in lieu of affidavit. It is a declaration, signed under the penalty of perjury. When an attorney drafts it accurately, no further steps are necessary. Under Utah Code § 78B-5-705, a party may file a verified declaration (under penalty of perjury) in lieu of an affidavit. Why is this convenient? In nearly every case, you are allowed to file a verified declaration instead of an affidavit (I have not seen a case yet where an affidavit is required, although there have been some close calls). Essentially, you don’t need to run to the bank for a notary public every time you want to sign your document. Even if your attorney has a notary public available at his/her office, a verified declaration will prevent you from needing to go to your attorney’s office every time he/she wants to file a new document.
Parent-Time. If you are a parent, you do not have visitation. You have “parent-time.” If your spouse or ex-spouse is a parent, he/she does not have visitation, he/she has “parent-time.” Visitation is for grandparents, step-parents, surrogate parents, etc. Visitation is not for a parent. Why does this matter? Not only can it be insulting for a parent to be told he/she is a visitor with visitation rights (particularly when the parent is a “non-custodial” parent), which can harm good will between the parties, but the court recognizes these statements as insulting.