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Family Law Definitions

Ad Litem: a person appointed to a suit on behalf of a party incapacitated by infancy or otherwise. A Guardian Ad Litem would be a guardian appointed to oversee another person. An Attorney Ad Litem would be an attorney represented to another person, usually a child or children, who may be affected by the suit.

Adoption: a legal process wherein parental rights are terminated (usually one or both birth parents) and rights and duties for and toward a child are created in the adoptive (new) parents.

Alimony: maintenance or support for a spouse or former spouse. Historically, Texas did not allow for alimony; however, fairly recently, the legislature provided for spousal maintenance. See spousal maintenance.

Annulment: a proceeding to have a marriage declared void as if it never took place.

Associate Judge: a judge of a court, other than the presiding justice. Most family court judges select and employ an associate judge to assist with matters before the court. The associate judge is responsible to the elected judge.

Appeal: to contest the outcome of a case or have a higher court review the decision or outcome. Appellate courts have jurisdiction to review the law applied in a trial court.

Child Support: the legal obligation of parents to contribute to the economic maintenance or support of their children. Child support guidelines are set by statute. There is a presumption that the guidelines are adequate but may be modified to address particular needs.

Collaborative Law: a process used by some specially trained lawyers to try and resolve issues and disputes through an open sharing of information without the threat of court intervention.

Common Law Marriage: a marriage created by law when a man and woman either register an official document of marriage with the clerk’s office or when they otherwise agree to be married, live together in Texas as husband and wife, and represent to other in Texas that they are married; also referred to as an informal marriage. Though a marriage may begin informally or by “common law”, there is no common law divorce.

Community Property: property, other than separate property, acquired by either spouse during the marriage; property owned by husband and wife each having an undivided one-half interest in the property because of their marital status; property belonging to the marriage; property accumulated during the marriage; and includes wages earned during the marriage. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

Conservatorship: guardianship. Usually, in terms of a divorce with children, parents can be appointed sole or joint managing conservators or possessory conservators.

Contempt: a willful disregard of a court order. Every court has power to punish those subject to its orders. Generally, the court may fine or jail a party who willfully disobeys a lawful order of the court.

Court Trial: a trial without a jury where the judge makes determinations on issues submitted.

Custodial Parent: generally, the parent with whom the child resides even though custody may be shared.

Dating Violence: an act by a person that is against another person with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself. Dating relationship means a continuing relationship of a romantic or intimate nature.

Division of Property: the method and means by which the court will divide community property upon divorce. The court shall order a division of the property in a manner that is just and right, having due regard for the rights of each party and any children of the marriage.

Divorce: a legal proceeding to end an otherwise valid marriage; provides for division of property and issues orders regarding any children. Texas recognizes “no fault” divorces; therefore, it is not necessary to prove either party to be at fault in the break up.

Enforcement: a motion or hearing to enforce prior orders of the court, including provisions of the divorce decree, child support obligations, and periods of possession related to the children.

Evidence: the means by which alleged matters of fact is established or disproved. Evidence includes testimony of witnesses, documents, records, exhibits, objects, and any other probative matter offered for the trier of fact to consider in reaching its decision.

Family Violence: an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

Final Protective Order: an order of protection where family violence has occurred and is likely to occur in the future or when there has been a violation of a previously rendered protective order. Notice and a hearing are required prior to entry. Can be valid for up to 2 years. Violations are subject to civil and criminal penalties.

Joint Managing Conservatorship: the sharing of the rights and duties of a parent by two parties, generally the parents, even if the exclusive right to make certain decisions may be awarded to only one party.

Jury: a body of members of the community who are selected to hear evidence.

Jury Trial: a trial with a jury comprised of members of the community who will determine issues submitted.

Licensed Marriage: a marriage requiring a marriage license and performed by an authorized official (minister, priest, rabbi, judge, etc.)

Magistrate’s Order of Emergency Protection: a temporary order of protection where a person has been arrested for family violence or stalking. Notice and a hearing are not required for issuance but generally the subject of the order must be served with the final order. It can last either 31-61 days if no deadly weapon was used or 61-91 days if a deadly weapon was used. Violation carries civil and criminal penalties.

Mediation: a process where parties meet with a neutral person (mediator) to try and resolve issues in their case without the need for court intervention. Mediation is generally required in all family law matters. Mediation often results in costs savings for the parties and is generally a friendlier process than court.

Parental Liability: personal responsibility placed on a parent for the actions of a child. Parental liability is limited to property damage proximately caused by the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent to discipline or control the child and the willful and malicious conduct of a child who is at least 10 years of age but under 18 years of age.

Parenting Class: a class or workshop offered to parents, and often required by the court, to assist parents in dealing with children, learning new discipline techniques, life skills, and strengthening family bonds.

Paternity: status as a father. Among other reasons, actions can be brought to establish paternity for purposes of support.

Perjury: generally, making a false statement under oath.

Petition: a document to begin a proceeding in court. Petitions are filed to begin a divorce, seek modification of child support or possession, or enforce orders, among other things.

Petitioner: the party who files the petition to start a proceeding in court.

Presumed Father: a man becomes a father if his paternity is presumed. A presumed father is a man who, by law, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding. Presumption occurs in the following circumstances: (1) he is married to the child’s mother, and the child is born during the marriage; (2) he was married to the child’s mother, and the child is born within 300 days after the marriage ended (by divorce, annulment, etc.); (3) he married the child’s mother before the birth of the child in apparent compliance with the law and the child is born during that marriage or within 300 days after that marriage ended; (4) he married the child’s mother after the birth of the child in apparent compliance with the law, he voluntarily asserted his paternity of the child and (a) the assertion is in a record filed with the Bureau of Vital Statistics, (b) he is voluntarily named as the child’s father on the child’s birth certificate, or (c) he promised in a record to support the child as his own; or (5) he continuously lived in the same household with the child during the first two years of the child’s life, and he represented to others that the child was his own. Although a presumption occurs in the above instances, it can be rebutted or shown to be not true.

Protective Order: an order issued by a judge or magistrate generally prohibiting harassing communications, stalking, threats, physical contact, etc. There are 3 types of family violence protective orders that can be granted under the Family Code and the Code of Criminal Procedure: temporary ex parte protective order, final protective order, and magistrate’s order of emergency protection. There can be civil and criminal consequences to violating a protective order.

Respondent: the non-partitioning party in a proceeding.

Separate Property: property that is not owned by the marriage; it is acquired or created apart from the marriage and is owned individually by the spouse. Includes property acquired before the marriage, party acquired by devise or descent (basically, inherited property), property acquired by third-party gift, property or income arising from interspousal gift, property recovered for personal injury, property acquired with separate property funds.

Service: a process where a sheriff, constable, or private process server delivers a copy of the petition to the respondent.

Spousal Maintenance: allowed only if (1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence within two years before the date on which a suit for dissolution of the marriage is filed or while the suit is pending, or (2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under the family code, to provide for the spouse’s minimum reasonable needs, as limited by law, and the spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, is the custodian of a child who requires substantial care and personal supervision because of a physical or mental disability, or clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by law.

Standard Possession Order: an order of possession defined in the family code which allocates periods of possession and access to the child or children. The standard possession order is presumed to be in the best interest of the child but may be deviated from in some instances.

Subpoena: a court order, usually directed to a person, to personally appear before the court at a designated time or to appear and provide documents or objects.

Suit Affecting Parent-Child Relationship: a lawsuit in which a person seeks to (1) be appointed conservator of a child, (2) receive possession of and access to a child, (3) receive child support, (4) establish the parent-child relationship, (5) terminate the parent-child relationship, or (6) adopt a child. Each of these claims may be brought separately or together, depending upon the circumstances.

Temporary Ex Parte Protective Order: a temporary order of protection where this is a clear and present danger of family violence. Notice and a hearing are not required in most cases. Lasts for up to 20 days (unless extended by a judge).

Temporary Restraining Order (TRO): an order used to preserve the status quo by restraining a party from doing some act, such as making harassing phone calls; TROs under the family code are used to provide protection for spouses and children and to preserve property. A TRO expires on the earlier of (1) the date specified by the court but no more than 14 days after the order is signed, or (2) the date of the hearing on the temporary injunction. On good cause, the court can extend for an additional 14 days, or the party being restrained may consent to longer extensions of time.

Trial: a process where a judge or jury hears the facts of a case, as presented through witnesses and evidence, according to established rules and procedures for the purpose of determining issues presented.

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