GLOSSARY OF LEGAL TERMS IN ILLINOIS

Abandonment:

A grounds for divorce. See Desertion.

Abuse:

See Domestic Violence.

Action:

A lawsuit taken to court.

Adultery:

A grounds for divorce. Adultery is voluntary sexual intercourse between a married person and someone other than the person’s spouse.

Affidavit:

A written statement signed under oath in the presence of a notary public.

Alimony:

See Maintenance.

Allocation of Parental Responsibilities:

Formerly known as child custody, allocation of parental responsibilities refers to the right of a parent to make important decisions about his/her child’s health, education, general welfare, and best interests. In the past these rights were often referred to as legal custody. Parenting time, formerly known as visitation, schedules are usually decided along with parental responsibilities.

Alternative Dispute Resolution:

(ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, and collaborative law. These processes are often less formal than traditional adversarial court cases.

Annulment:

See Declaration of Invalidity of Marriage.

Answer:

See Response.

Area-rage:

The amount of money that is past due for child support or maintenance (alimony/spousal support).

Attorney for Child:

An attorney appointed by the court to represent a child or dependent child in contested support, custody, visitation, education, parentage, property interests or general welfare issues. The fees of the attorney are paid for by the parents.

Body Attachment:

A court order directing the authorities to bring a person who has been found in civil contempt before the court. A body attachment may be ordered, for example, when a witness fails to appear in response to a subpoena or someone without justification fails to comply with a court order.

Burden of Proof:

A person’s duty to prove the truth of his or her claims and allegations in a lawsuit. There are various burdens such as preponderance of the evidence, clear and convincing, and beyond a reasonable doubt. The proper burden depends upon the type of claim one asserts.

Caption:

The title of a pleading, motion, or other court filing showing the names of the Plaintiff/Petitioner and Defendant/Respondent, the name of the court, the court division and the Case Number.

Cause of Action:

A group of facts giving rise to one or more legal reasons for suing.

Change of Venue:

The transfer of a lawsuit from one county to another.

Child Support:

Regular payments of money that one parent pays to the other parent for their children’s support.

Child Support Guidelines:

Guidelines established by the State that set forth the manner in which child support must be calculated. In Illinois, the two main factors are the net income (a term defined by law that can differ from one’s take-home pay as reported on a paystub) of the parent obligated to pay child support and the number of children. Under some circumstances, courts may deviate from the set guidelines.

COBRA:

An acronym for the federal Consolidated Omnibus Budget Reform Act. The law allows a divorced spouse who is covered on their ex-spouse’s group health insurance policy to continue coverage of health insurance for up to 36 months.

Cohabit:

To live with, and usually have sexual relations with, another person.

Collaborative Law:

A process in which a couple hire specially-trained lawyers and other professionals who work to help them resolve their divorce outside of court. A key component of this process is that if the spouses are unable to settle their case out of court, the lawyers and other professionals are prohibited from working on the divorce case in court.

Commingle:

When one mixes non-marital funds or assets into marital property, or vice versa.

Complaint:

The initial pleading with the court, filed by the Petitioner (Plaintiff). In a divorce action, it is called a Petition for Dissolution of Marriage, and it contains the Petitioner’s (Plaintiff) allegations of his or her reasons for divorce. The spouse who must respond to the Complaint/Petition is known as the Respondent or Defendant.

Contempt:

The willful disregard and disrespect of a judge’s court order. It is conduct that defies the authority or dignity of a court. It is often punishable by fine or imprisonment, or both.

Contested Divorce:

A case in which the spouses do not agree upon the terms required to finalize the divorce.

Corroborate:

To prove a statement, argument, etc. with confirming facts or evidence.

Counterclaim:

A claim by the Respondent/ Defendant against the Petitioner/Plaintiff. A common counterclaim is a Respondent/Defendant’s also requesting a divorce. There are often tactical reasons for having two requests for divorce.

County Clerk’s Office:

The office where court cases are filed, court filing fees are paid and court papers are and stored. In many counties, this office is located in the same building as the courtrooms.

Court Order:

A legal decision made by a judge that commands or directs that something be done or not done. Generally, court orders are in writing.

Custody:

See Allocation of Parental Responsibilities

Declaration of Invalidity of Marriage:

A court order that states that a marriage was never legally valid. Marriages may be declared invalid for only a limited number of reasons and only for a limited period of time.

Default Judgment:

A divorce judgment that is obtained against the Respondent/Defendant when the Respondent/Defendant fails to participate in the case. A person can be held in default for various reasons including failure to respond to or answer the Petition for Dissolution of Marriage or as a sanction for failure to follow the rules of the court.

Defendant:

The person against whom (the person who is served) the divorce action is brought. In divorce cases this person is referred to as the Respondent.

Deposition:

It is a form of discovery. A deposition is a person’s out-of-court, sworn testimony that is reduced to writing (usually by a court reporter) for later use in the lawsuit. Depositions are conducted in a question and answer format, with questions being asked by an attorney representing one of the spouses. Both spouses may be deposed, as well as people outside of the case. Except for a judge not being present, a deposition is conducted in a manner similar to a trial. In Illinois there are two kinds of depositions, discovery and evidence.

Desertion:

A grounds for divorce. Desertion occurs when one spouse has left the other for a continuous period of one year or more, without the spouse’s consent, and without justification.

Discovery:

The information-exchanging process of a case. Information and documents can be sought from the other spouse, as well as people and businesses not a part of the case. Common forms of discovery are depositions, subpoenas, interrogatories and requests for documents. Examples of documents sought in divorce cases are tax returns, bank statements, credit card statements, financial statements, loan records, etc.

Dissipation:

The wasteful use of an asset or income for a purpose unrelated to the marriage. Dissipation must occur after there has been an irretrievable breakdown of the marriage and there are time limits imposed by law. Spending money on a paramour may constitute dissipation.

Dissolution of Marriage:

The legal term in Illinois for divorce. It is the legal termination of a marriage pursuant to court order.

Divorce:

The legal termination of a marriage relationship. See Dissolution of Marriage.

Domestic Violence:

Domestic violence is abuse which includes physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but it does not include reasonable direction of a minor child by a parent. See the Illinois Domestic Violence Act of 1986.

Emancipation:

The release of a child from the responsibility and control of a parent or guardian. Under Illinois law, a child is emancipated at age 18. However, child support is generally paid until age 19 if the child is still in high school.

Enjoin:

To legally prohibit or restrain by a court injunction (order).

Equitable Distribution:

The way marital property must be divided by law in an Illinois divorce case. Equitable distribution does not require an equal division of property. Distribution is based on various factors the court must consider.

Evidence:

Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.

Exhibit:

A document, record, or other tangible object formally presented as evidence in court.

Ex Parte (Communication):

An application or statement made to the court by one party (including counsel) without notice to, or in the absence of, the other party. This type of communication to the court is generally prohibited.

Expert:

A person who, through education or experience, has developed skills or knowledge of a particular subject, so that he or she may form an opinion that will assist the judge in making a decision.

Fault Divorce:

A divorce in which the plaintiff alleges misconduct of the other spouse as the basis for the divorce. In Illinois divorces can be based upon fault or not. Fault or grounds are relevant only to ones right to a divorce, but not in determining issues such as custody or property division.

Finding of Fact:

A determination by a judge of a fact as proved by the evidence; usually presented at the trial or a hearing.

Forensic:

It relates to the application of scientific knowledge to legal problems.

Grounds for Divorce:

Behaviors which constitute legal reason for the state to grant a divorce. In Illinois these are: adultery, bigamy, extreme and repeated physical or mental cruelty, desertion, conviction of a felony or infamous crime, gross and confirmed habits caused by the excessive use of addictive drugs, habitual drunkenness, infecting the other with a sexually transmitted disease, impotency, and attempting the life of the other by poison or other means showing malice. The irretrievable breakdown of the marriage (no-fault) that meets the statutory separation period is a non-fault basis for divorce.

Guardian ad Litem (G.A.L.):

An attorney appointed by the court to submit a written report regarding recommendations concerning a child’s best interests in cases that have contested support, custody, visitation, education, parentage, property interests or general welfare issues. The fees of the G.A.L. are paid for by the parents.

Hearsay:

Testimony that is given by a witness who tells not what he or she knows personally, but what others have said which is therefore dependent on the credibility of someone other than the witness. That testimony is generally inadmissible under the rules of evidence.

In Camera Inspection:

A judge’s private consideration of evidence. Typically, sensitive information about child custody or business records is reviewed in camera, not in open court.

Injunction:

See Restraining Order.

Interrogatory:

A form of discovery which consists of written questions which the other side must answer in writing and under oath.

Irretrievable Breakdown:

A relationship that is impossible to repair and has been so broken for a period of at least six months.

Joint Legal Custody:

See Custody.

Judgment of Dissolution of Marriage:

A document signed by the court granting the divorce. It may incorporate a Marital Settlement Agreement and a custody agreement.

Jurisdiction:

The authority of a court to act in particular matters. It can also refer to the locale a case is filed.

Legal Custody:

See Custody.

Legal Separation:

A legal proceeding that allows one to remain married but still obtain child support or maintenance from their spouse. The mere living separate and apart does not constitute a legal separation. .

Litigation:

The resolution of a controversy in court.

Maintenance:

Maintenance was formerly known as “alimony” in Illinois. Maintenance is spousal payments made to help support a spouse, or former spouse, during separation or following divorce.

Marital Debts:

Debts that a husband and/or wife incurred during the marriage.

Marital Estate:

A commonly used term, collectively referring to marital property and marital debts.

Marital Property:

All property that is not non-marital property. As a general rule, it is any property, regardless of which spouse is named as owner that is acquired from the date of marriage until the entry of a Judgment of Dissolution of Marriage. A house, car, bank account, pension, IRA, profit sharing, annuity, and business are all examples of property that may be marital property.

Marital Settlement Agreement:

A marital settlement agreement (MSA) is a written contract between spouses that sets out each party’s rights and responsibilities regarding marital and non-marital property, debt, maintenance, custody, visitation, child support, taxes, and the like. It is incorporated directly or by reference into the Judgment of Dissolution of Marriage.

Mediation:

A form of alternative dispute resolution (ADR) for resolving legal disputes without going to trial, by the use of a trained and impartial third party, a “mediator” , who attempts to bring the parties together in mutual agreement. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves.

Motion:

A written request made to the court, for example, a request to postpone a court date.

No-Fault Divorce:

A divorce in which no misconduct is alleged, but rather is based upon an “irretrievable breakdown” of the marriage.

Non-Marital Property:

Property: acquired prior to the marriage; acquired by gift or inheritance; acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance; acquired after a judgment for legal separation; excluded by a valid agreement. Non-marital property includes the increase in value of said property as well as the income from property so acquired.

Non-Custodial Parent:

The parent whom the children do not primarily reside with.

Order:

See Court Order.

Order of Protection:

An order issued by a court when there is an act of domestic violence. It directs one person to stop certain conduct, such as abuse or harassment, against another person. The order may also exclude one from the residence and to stay away from the other person, his or her home, school, place of employment and his or her children.

Parenting Time:

Parenting time is the time the non-custodial parent (the parent who does not have the child living with him or her most of the time) spends with the child.

Party:

A Plaintiff or Defendant in a legal proceeding.

Paternity:

Legal determination of fatherhood in cases where parents are not married. Paternity must be determined before a court can order child support.

Petition:

A written request made to the Court by a party, requesting relief based on factual issues, examples include petitions requesting dissolution of marriage (divorce), custody child support, etc.

Petitioner:

The person who initiates the divorce by filing a Petition for Dissolution of Marriage. In some states this person is known as the Plaintiff.

Physical Custody:

Legal right of an adult to live with the child as the primary caregiver. The day-to-day rights and responsibilities associated with having your child in your home and being responsible for his or her care and upbringing.

Plaintiff:

The person who starts the case by filing the complaint or petition. See Petitioner.

Prenuptial Agreement:

An agreement entered into before marriage that sets forth each party’s rights and responsibilities should the marriage terminate by death or divorce – a/k/a a Premarital Agreement.

Pretrial Conference:

A meeting of the attorneys with the judge, sometimes held in the judge’s chambers (office) outside the presence of the parties. During a pretrial conference, the parties’ lawyers will present the contested issue, and the trial judge will make a recommendation of how he/she would rule, should the case go to hearing or trial. It is an effort to settle all or certain issues.

Process Server:

A person that serves court papers on a party to a lawsuit. In many cases local or county sheriffs serve the court papers.

Proof of Service:

A form filed with the clerk that proves that court papers were formally sent to a party in a court action on a certain date.

Pro Se:

Refers to persons that represent themselves in court without lawyers.

Qualified Domestic Relations Order (QDRO):

An order issued by the court to divide retirement certain benefits. The use of a QDRO allows retirement benefits to be divided without immediate taxation or penalty for the early withdrawal of retirement monies.

Respondent:

The person who answers a petition in a divorce. In some states this person is known as the Defendant.

Response:

The written response to a petition filed with the court that admits or denies the allegations of fact within a petition or motion.

Restraining Order:

A court order, that prohibits a person from doing certain things. Restraining orders often are issued to protect assets and to protect against domestic violence.

Request for Production of Documents:

A form of Discovery, in which the requesting party seeks the production of certain documents from the other party,for inspection and/or copying.

Rule to Show Cause:

A court order requiring a person to appear in court and present any evidence why he or she should not be held in contempt of court for failure to follow a court order.

Service:

The delivery to the other side that a complaint, petition or motion has been filed and providing them with a copy of the papers.

Spousal Support:

See Maintenance.

Stipulation:

A voluntary agreement on an issue or issues.

Subpoena:

A legal notice requiring a person’s attendance at a particular time and place to testify as a witness or to provide certain documents that are requested. Failure to comply can be contempt of court.

Substitution of Judge:

A substitution of judge is replacing the assigned judge with a new judge. Before a judge rules on any substantive issues, either party is permitted as a matter of right, to obtain one substitution of judge. A substitution of judge may also be permitted for cause in cases where some bias on the judge’s part can be shown.

Summons:

This document is issued by the County Clerk and a copy, along with the Petition for Dissolution of Marriage, is served upon the Respondent by a process server. It gives notice that the divorce case was filed and instructs the Respondent what action must be taken in order to preserve his or her rights. In a divorce case the required action is that the Respondent must file an Appearance and Response to the Petition for Dissolution of Marriage within 30 days of being served the Summons.

Supervised Visitation:

Visits with a child that is restricted in some fashion. The restriction may require visitation to occur under the supervision of a responsible adult or may prohibit certain conduct during visitation (no consumption of alcohol, no transporting a child without proper car seats, etc.).

Third Party:

A party to a court action who is not the Petitioner/Plaintiff or Respondent/Defendant.

Trial:

A formal proceeding before a judge in which each party’s attorney presents his or her case, supported by testimony from witnesses or other evidence. After presentment of each spouse’s case, the judge decides all contested issues. In Illinois divorces, there are no juries.

Unallocated Support:

Payments that include both maintenance and child support, without the payment being allocated in specific amounts to either. Generally child support payments are not deductible to the payer and the support is not reportable as income to the recipient. Unallocated support payments allow the payer to deduct the full amount of the payment and the recipient declares the full payment as income.

Uncontested Divorce:

A divorce case in which the spouses agree to issues and thus a trial is not necessary and/or does not occur.

Venue:

The permissible location(s) for a lawsuit to be filed.

Verified:

A declaration stating that the facts in a document are true. Most petitions in divorce cases must be verified.

Visitation:

See Parenting Time.

Waiver:

Knowingly, intentionally giving up rights or claims.