The divorce glossary: every term, in plain English

Advance fee deposit vs. evergreen retainer vs. non-refundable retainer

An advance fee deposit is money held in trust and drawn down as work is billed. An evergreen retainer is a deposit the client is required to replenish back to a set level whenever it drops, so the trust balance never runs to zero mid-case. A (true) non-refundable retainer purports to belong to the lawyer immediately regardless of work performed, which is generally improper under the ABA Model Rules because unearned fees must be returned.

Where it bites. Ask exactly which of these your fee agreement describes; the label a firm uses in conversation (‘retainer’) doesn’t reliably tell you which of the three you’re actually signing.

ABA Model Rule 1.15

Alimony / spousal support / maintenance

This one genuinely means different things in different states

Court-ordered payments from one former spouse to the other after divorce, intended to address income disparity, not child-related expenses (which is child support).

Where it bites. The terminology itself varies by state (‘alimony,’ ‘spousal support,’ and ‘maintenance’ are used interchangeably depending on jurisdiction), as do the formulas and factors used to calculate amount and duration.

Best interests of the child

This one genuinely means different things in different states

The core legal standard courts use to decide custody and parenting time, focused on what arrangement serves the child’s welfare, not what either parent wants.

Where it bites. Courts weigh factors like the child’s health and safety, stability, each parent’s caregiving history, domestic violence or substance abuse history, and (as children get older) the child’s own preference; there is no single fixed test, and courts balance all relevant circumstances.

Collaborative divorce

A structured process where both spouses and their specially trained attorneys commit in writing to negotiate a settlement without going to court, often bringing in jointly-hired neutral experts (financial, child specialists) as needed.

Where it bites. The defining feature is the disqualification agreement: if the collaborative process breaks down and either party goes to court, both attorneys must withdraw and the parties must hire new litigation counsel, which creates a strong incentive to actually reach agreement.

Commingling

This one genuinely means different things in different states

Mixing separate property with marital property to the point that it becomes difficult or impossible to trace and separate them again.

Where it bites. Depositing inherited money into a joint checking account used for household expenses is a classic way separate property can become commingled and lose its separate character; how much commingling it takes to convert the asset varies by state.

Consent order

A court order entered because both parties agreed to its terms, rather than because a judge decided a contested issue.

Where it bites. Functions like any other court order (enforceable, appealable within limits) even though it originated from agreement rather than a ruling.

Contempt

A finding that a party willfully disobeyed a valid court order, which can lead to penalties including fines or, in serious cases, jail.

Where it bites. The main enforcement tool when an ex-spouse ignores a support or custody order; usually requires proving the violation was willful, not just that it happened.

Custody evaluator

This one genuinely means different things in different states

A mental health professional appointed or hired to assess the family and recommend a custody/parenting arrangement to the court.

Where it bites. Evaluations can involve interviews, home visits, and psychological testing of the parents and children; the resulting report often heavily influences the judge’s custody decision, and evaluators can be costly (sometimes thousands of dollars).

Date of separation

This one genuinely means different things in different states

The date the court treats the marriage as having functionally ended, used as a cutoff for what counts as marital versus separate property/debt in many states.

Where it bites. This date can be disputed (spouses may disagree on when they actually separated), and it can materially change what’s divided, since income and debt after that date may be treated as separate.

Date of valuation

This one genuinely means different things in different states

The date used to determine the dollar value of marital assets (like a house, business, or investment account) for division purposes.

Where it bites. Asset values can shift significantly between separation and trial; states differ on whether they use the date of separation, date of filing, or date of trial (or let the court pick), which can matter enormously for volatile assets.

Decree vs. judgment

This one genuinely means different things in different states

In many states ‘divorce decree’ and ‘judgment of divorce/dissolution’ refer to the same final court document ending the marriage and setting its terms; some states use one term, some the other, and some use both for different documents.

Where it bites. Don’t assume the two terms mean different things without checking your state’s terminology; what matters is which document is the final, enforceable order.

Default judgment

A judgment entered against a party who fails to respond or appear in the case by the required deadline, effectively granting the other side what they asked for.

Where it bites. A common and serious pro se trap: missing a response deadline, even by a few days, can result in losing on custody, property, or support terms without ever being heard.

Deposition

Sworn, out-of-court testimony given by a witness or party, recorded in question-and-answer form, usually before trial.

Where it bites. Used to pin down a spouse’s or witness’s story under oath before trial, which can be used to catch inconsistencies later; depositions can be expensive due to attorney and court reporter time.

Discovery

The formal, pre-trial process by which each side gathers facts and documents from the other, and sometimes from third parties, before a hearing or trial.

Where it bites. Discovery is how you find out about a spouse’s real income, assets, or debts if they won’t disclose voluntarily; it includes interrogatories, requests for production, depositions, and subpoenas.

Discovery sanctions

This one genuinely means different things in different states

Penalties a court imposes on a party who fails to properly respond to discovery requests, ranging from paying the other side’s costs to having facts deemed established against them, to (in extreme cases) losing on an issue entirely.

Where it bites. A spouse who stonewalls document requests or interrogatories risks the court simply assuming the withheld information was unfavorable to them, or ordering them to pay the other side’s legal costs for having to compel compliance.

DRO (Domestic Relations Order)

This one genuinely means different things in different states

A court order dividing a retirement or benefit plan that is not governed by ERISA (for example, many government or military pensions), functioning similarly to a QDRO but under different rules.

Where it bites. Government, military, and some state/local pension plans use their own DRO process and forms rather than the ERISA QDRO process; using the wrong form or process for the plan type is a common error.

Equitable distribution vs. community property

This one genuinely means different things in different states

Equitable distribution states divide marital property in a way the court finds fair, which is not necessarily 50/50. Community property states generally treat property acquired during the marriage as owned equally by both spouses and split it 50/50.

Where it bites. Which system applies depends entirely on the state; community property states include, for example, California, Arizona, and Texas, while most other states use equitable distribution. This affects negotiating strategy and expectations from the start.

ERISA plan vs. IRA

An ERISA plan is an employer-sponsored retirement plan (401(k), pension) governed by federal law, which requires a QDRO to divide in divorce. An IRA (Individual Retirement Account) is not employer-sponsored or ERISA-governed, and is typically divided by the divorce decree itself, without a separate QDRO.

Where it bites. Confusing the two can mean a party either wastes money drafting an unnecessary QDRO for an IRA, or fails to get a QDRO an ERISA plan actually requires.

Ex parte

A request or hearing made by one party without the other side present or having had notice, typically used only in urgent situations.

Where it bites. Used for emergency orders (e.g. immediate custody or protective orders) where waiting for a normal notice period could cause harm; because the other side isn’t there to respond, courts hold these requests to a higher standard and generally require a follow-up hearing with both sides.

Financial affidavit / financial disclosure statement

This one genuinely means different things in different states

A sworn, often court-mandated form listing a party’s income, expenses, assets, and debts.

Where it bites. Required in most states before a divorce can finalize; omitting an asset, even by mistake, can expose you to sanctions or give the other side grounds to reopen the case if discovered later.

Guardian ad litem (GAL)

This one genuinely means different things in different states

A person, often an attorney, appointed by the court to represent a child’s interests (not either parent’s interests) in a custody or related proceeding.

Where it bites. The GAL investigates and makes recommendations to the court about what serves the child, and their report can carry significant weight with the judge; their role and title vary by state.

Home state

Under the UCCJEA, the state where a child has lived with a parent (or someone acting as a parent) for at least six consecutive months immediately before a custody case starts; this state generally has jurisdiction over custody decisions.

Where it bites. For newly relocated families, or those who split time between two states, ‘home state’ status can be genuinely contested and determine which court has the power to decide custody at all.

Imputed income

This one genuinely means different things in different states

Income a court assigns to a parent or spouse for support calculations, not based on what they actually earn, but on what they could earn given their skills, work history, and local job market.

Where it bites. Courts look at whether a party is voluntarily unemployed or underemployed and consider earning capacity. States differ on whether the court must find the party acted in bad faith (deliberately reducing income to avoid support), or whether simple voluntary unemployment/underemployment is enough; some courts distinguish reasonable life choices (a parent staying home with a child with health issues, a young adult in college) from choices made to dodge obligations.

Imputed value

This one genuinely means different things in different states

A value a court assigns to an asset or contribution (such as a spouse’s unpaid homemaking, or an underpriced sale of a marital asset) rather than accepting a stated or claimed value at face value.

Where it bites. Comes up when a party undervalues an asset on paper, or when a court wants to account for a non-financial contribution to the marriage in dividing property.

In forma pauperis

This one genuinely means different things in different states

Latin for ‘in the manner of a pauper’; a court process allowing a person who cannot afford court costs (like filing fees) to proceed without paying them.

Where it bites. Typically requires filing a sworn financial statement showing income near or below the poverty line, or documented public benefits receipt; courts vary in their specific eligibility thresholds and required forms.

Incorporated vs. merged agreements

This one genuinely means different things in different states

When a settlement agreement is ‘incorporated but not merged’ into the divorce decree, it stays a separate, independently enforceable contract even though the court has approved it, meaning contract remedies (like a breach of contract claim) may apply alongside or instead of contempt, and modification of its terms may be more limited. When an agreement is ‘merged’ into the decree, it loses its separate identity as a contract and becomes simply part of the court order, generally making it fully enforceable and modifiable through the court’s ongoing family-law powers like any other order.

Where it bites. This distinction genuinely changes what you can do later: whether a term can be modified by the court, whether you enforce it by contempt or by suing for breach of contract, and how a bankruptcy court might treat an obligation. Very few pro se litigants (or their exes) understand this when they sign, and it’s worth asking explicitly which one your agreement will be.

Interrogatories

Written questions sent to the other party in a case, which must be answered in writing and under oath.

Where it bites. A standard discovery tool used to get a spouse to formally state facts about income, assets, or other matters relevant to the case; false answers can be used against them later.

Joint vs. sole (custody)

Joint means both parents share the custody right (legal, physical, or both); sole means only one parent holds it.

Where it bites. Joint legal custody is common even where physical custody is unequal; joint physical custody implies a more evenly split parenting-time schedule, though ‘joint’ doesn’t always mean 50/50.

Jurisdiction

A court’s legal authority to hear and decide a particular case or type of case.

Where it bites. A judgment issued by a court without proper jurisdiction can be void or unenforceable; this is a frequent issue in interstate custody disputes (see UCCJEA).

Legal custody vs. physical custody

Legal custody is the right to make major decisions for the child (education, medical care, religion). Physical custody is where the child actually lives day to day.

Where it bites. Parents can have joint legal custody while one has primary physical custody, or any combination; the two are decided and can be litigated separately.

Legal Document Assistant (LDA)

This one genuinely means different things in different states

In California, a county-registered, bonded non-lawyer authorized to prepare and file self-help legal documents at a client’s direction, and to provide general (non-case-specific) legal information, but never legal advice.

Where it bites. A cheaper alternative to a lawyer for people who know what they want done and just need help with the paperwork, but not for anyone who needs actual legal advice or strategy.

Cal. Bus. & Prof. Code ss. 6400-6415

Legal Paraprofessional (Arizona)

This one genuinely means different things in different states

A licensed non-lawyer class of legal practitioner in Arizona who, unlike a document preparer, can give legal advice, prepare and sign documents, appear in court, and negotiate on a client’s behalf within a defined scope that includes family law.

Where it bites. A genuine middle tier between full representation and self-help, available only in Arizona; licensees pass an exam and character/fitness review and are bound by the same ethics rules as lawyers.

Licensed Paralegal Practitioner / regulatory sandbox (Utah)

This one genuinely means different things in different states

Utah’s licensed non-lawyer practitioners (LPPs) can independently handle specific family law matters including uncontested divorce; separately, Utah’s Office of Legal Services Innovation runs a court-authorized ‘regulatory sandbox’ that tests other new, non-traditional ways of delivering legal services.

Where it bites. Available only in Utah; a genuine, court-sanctioned lower-cost option for straightforward family law matters, distinct from unregulated ‘document prep’ services.

Marital waste / dissipation

This one genuinely means different things in different states

One spouse spending, hiding, or destroying marital assets for a purpose unrelated to the marriage, often around the time of separation, such as gambling losses, an affair, or gifts to a third party.

Where it bites. A court finding dissipation can award the other spouse a larger share of the remaining assets to offset what was wasted; proving it usually requires financial records and sometimes forensic accounting.

Mediation vs. arbitration

In mediation, a neutral third party helps the spouses negotiate their own agreement but has no power to impose a decision. In arbitration, a neutral third party (the arbitrator) hears both sides and issues a binding decision, similar to a private judge.

Where it bites. Mediation only produces a result if both parties agree; arbitration produces a result regardless, which the parties are generally bound by even if one side dislikes it, subject to very limited grounds for court review.

Modest means panel

This one genuinely means different things in different states

A bar-association-run referral program connecting people who earn too much for free legal aid, but not enough to afford standard rates, with attorneys willing to work for a reduced fee.

Where it bites. Typically offers a free or low-cost initial consultation and roughly half the standard hourly rate for straightforward matters like uncontested divorce; income thresholds and case types covered vary by bar association.

Modifiable vs. non-modifiable

This one genuinely means different things in different states

Whether a term of a divorce order (support, custody) can later be changed by the court based on changed circumstances. Custody and child support are generally always modifiable in the child’s interest; property division is generally final and non-modifiable once entered; whether alimony and certain agreement-based terms are modifiable depends on state law and on how the agreement/decree was drafted (see incorporated vs. merged).

Where it bites. Confirm in writing, at the time of settlement, whether a specific term you’re relying on can be revisited later; assuming something is modifiable when it isn’t (or vice versa) is a frequent and costly misunderstanding.

Motion

A formal written request asking the court to make a specific ruling or take a specific action.

Where it bites. Almost everything that happens mid-case (temporary orders, compelling discovery, modifying an order) happens through a motion, which typically must follow specific formatting, notice, and filing rules.

Nunc pro tunc

Latin for ‘now for then’; refers to a court order that corrects the record retroactively, as if it had been entered on an earlier date.

Where it bites. Used to fix ministerial errors, like a missing signature date, without redoing the substance of the order; it cannot generally be used to change what was actually decided.

Order to show cause

A court order requiring a party to appear and explain, or ‘show cause,’ why the court should not take a particular action against them, such as holding them in contempt.

Where it bites. Often the vehicle for enforcement requests, e.g., asking the court to make a non-paying spouse explain why they shouldn’t be held in contempt for missed support payments.

Parenting coordinator

This one genuinely means different things in different states

A neutral professional, sometimes an attorney or mental health professional, appointed post-decree to help high-conflict parents resolve day-to-day disputes over the parenting plan without returning to court each time.

Where it bites. Used mainly in ongoing high-conflict cases after the divorce is final; their authority to make binding decisions (versus just facilitate) varies significantly by state and by the appointing order.

Parenting time

The schedule specifying when each parent has the child (often called ‘visitation’ in older usage).

Where it bites. Increasingly the preferred term over ‘visitation’ because it reflects that both parents are ‘parenting,’ not just the noncustodial parent visiting.

Pendente lite

Latin for ‘pending the litigation.’ Refers to temporary orders (support, custody, use of the home) that apply only while the divorce case is ongoing.

Where it bites. A pendente lite order keeps things running (who pays what bills, who has the kids on which days) until the final decree; it is not a preview of the final outcome, though it can influence negotiating leverage.

QDRO (Qualified Domestic Relations Order)

A separate court order, distinct from the divorce decree, that a retirement plan administrator must approve before dividing an ERISA-covered retirement plan (like a 401(k) or pension) between former spouses.

Where it bites. A divorce decree saying ‘the 401(k) will be split 50/50’ does not by itself move any money; without a properly qualified QDRO, the plan pays out only under its own written terms, ignoring the decree.

Rehabilitative, durational, and permanent alimony

This one genuinely means different things in different states

Rehabilitative alimony supports a spouse while they gain skills, education, or work experience to become self-supporting. Durational alimony provides support for a fixed period tied to the marriage’s length, without becoming self-sufficiency-focused or permanent. Permanent alimony continues indefinitely, typically reserved for long marriages or a spouse unable to become self-supporting.

Where it bites. Not every state recognizes all three categories, or uses these exact names; for example, Florida’s statute defines these along with a fourth category, ‘bridge-the-gap’ alimony, for short-term transitional needs capped at two years.

Example: Fla. Stat. s. 61.08

Request for production

A formal discovery demand that the other party turn over specific documents or records, such as bank statements, tax returns, or pay stubs.

Where it bites. Used when informal requests for financial documents go unanswered; noncompliance can lead to a motion to compel and, eventually, sanctions.

Res judicata

A legal doctrine barring parties from re-litigating a claim or issue that has already been finally decided by a court.

Where it bites. Once your divorce judgment is final on an issue like property division, you generally cannot bring a new case to relitigate that same issue, absent narrow exceptions like fraud; this is part of why it matters so much to get things right the first time on non-modifiable terms.

Separate property

This one genuinely means different things in different states

Property owned by only one spouse, typically because it was acquired before the marriage, or received individually during the marriage as a gift or inheritance.

Where it bites. Separate property is generally not divided in a divorce, unless it has been commingled or transmuted into marital property.

Service of process

This one genuinely means different things in different states

The formal delivery of legal documents (like a divorce petition) to the other party, in a manner the law recognizes as sufficient notice.

Where it bites. A case generally cannot proceed to judgment against someone who was never properly served; improper service is a common ground to challenge or vacate a default judgment later.

Stipulation

An agreement between the parties (or their attorneys) on a fact or procedural point, submitted to the court, often to avoid the need to prove or litigate that point.

Where it bites. Parties frequently stipulate to uncontested facts or to a settlement’s terms, which the court can then adopt into an order.

Subpoena

A court order compelling a person to appear and testify, or to produce documents, under penalty for noncompliance.

Where it bites. Used to get records or testimony from third parties, like a bank, employer, or accountant, who wouldn’t otherwise be part of the case.

Transmutation

This one genuinely means different things in different states

A change in the legal character of property from separate to marital (or vice versa), through an action or agreement of the spouses.

Where it bites. Adding a spouse’s name to the title of a separately-owned house, for example, can transmute it into marital property in some states; rules on what’s required to prove transmutation (a writing, clear intent) vary widely.

UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act)

A law, adopted in nearly all US states, that determines which state’s courts have authority (jurisdiction) to make and enforce custody decisions when a family has connections to more than one state.

Where it bites. Generally, the child’s ‘home state’ (typically where the child has lived for the last six months) has jurisdiction; filing in the wrong state can produce a custody order that other states won’t recognize or enforce.

UIFSA (Uniform Interstate Family Support Act)

A law, adopted in all US states, governing how child support and spousal support orders are established, modified, and enforced when parties live in different states.

Where it bites. Prevents multiple states from issuing conflicting support orders for the same family by generally giving continuing exclusive jurisdiction to the state that issued the original order, as long as one party still lives there.

Unbundled / limited scope representation

This one genuinely means different things in different states

An arrangement where a lawyer handles only part of a case (drafting one document, appearing at one hearing) rather than the whole matter, with the client handling the rest.

Where it bites. Permitted under ABA Model Rule 1.2(c) and adopted in some form by most states, provided the limitation is reasonable and the client gives informed consent; it’s a genuine middle option between full representation and going it entirely alone.

ABA Model Rule 1.2(c)

Venue

This one genuinely means different things in different states

The proper geographic location (which specific court, typically by county) where a case should be filed, distinct from jurisdiction (whether a court has authority over the subject matter at all).

Where it bites. Filing in the wrong venue (e.g. the wrong county) can lead to delay or transfer even where the state as a whole has jurisdiction.

Vocational evaluation

An assessment by a vocational expert of a party’s realistic current earning capacity, based on their education, work history, skills, and the local job market.

Where it bites. Used to support (or rebut) an imputed income argument, or to inform how much rehabilitative alimony a spouse actually needs to become self-supporting.

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