Family Law, Divorce, Estate Planning, Wills, Trusts, Probate, Guardianship, Elder Law
 
Serving Orange County, California, including;
 Anaheim, Brea, Costa Mesa,  Fullerton, Huntington Beach, Irvine, Newport Beach, Orange, Santa Ana, Tustin, Villa Park, Yorba Linda

"An investment in knowledge always pays the best interest."
Benjamin Franklin

A

action: (cause of action) The fact or facts which give a person (party) the right to start a judicial (court) proceeding to seek relief or satisfaction for injury or damages against another person (party).

ademption: (adeems) The result whereby the gift of a specific devise and bequest adeems or fails because it is no longer in the testator's estate at the time of the testator's death, and the beneficiary may take nothing.

adjudicate: (adjudge) To make a judicial determination, judgment, decision, decree or resolution of a fact or dispute in a court, or administrative proceeding. A hearing by a court of competent jurisdiction, of legal evidence of the factual issues involved, and the rights and duties of the parties determined finally, after notice, and an opportunity to be heard. 
 
admission: A voluntary acknowledgment or statement by a party regarding a fact that is relevant to the legal position of his/her adversary.
 
adoption: The legal process by which a child (or adult) that is not a related by blood may be brought into one’s family and be given the right and privileges of a natural child and heir.
 
advancement: A lifetime gift made to a next of kin by a donor with the intent that the gift be applied against any share that the next of kin inherits from the donor decedent's estate.

affidavit:  A written declaration (statement) that is sworn to under oath and under penalty of perjury, by the person making the declaration, before a person having the legal authority to take the oath.
 
alimony: (maintenance) (see spousal support) Money allowance, which a spouse is ordered by the court to pay to the other spouse for maintenance, while they are separated or after they are divorced, on a temporary or permanent basis.
 
annulment: (nullity of marriage) An annulment is a legal determination (finding) that a marital status between the parties never existed. This differs from a divorce, which terminates (ends) a legal marital status.
 
antenuptial agreement: (prenuptial agreement, premarital agreement) An agreement made between the parties in contemplation of future marriage, which will become effective upon marriage, in which they attempt to resolve issues, such as support and division of property, in the event of the death of a spouse or upon divorce.
 
arrearage: (arrears) Money which is overdue or unpaid, such as in the case of child support owed by a parent.
 
attestation: The act whereby a person witnesses a document in writing, for the purpose of proving and identifying the document, at the request of the party making the document, and the name of the witness on the document is testimony of this fact.
 
attorney: (attorney at law, lawyer, counselor) A person admitted to practice law in a state, licensed, and qualified to give legal advice to clients and to represent them before courts (civil and criminal), administrative agencies, etc.
 
attorney of record: An attorney whose name appears on the records or files of a case and the person whom the client has named as his representative in the matter.

B

bail: A monetary amount usually set by a judge at the initial appearance of the accused the purpose of which is to ensure the return and appearance of the accused at subsequent court proceedings.

bar: The members of the legal professions, i.e. the whole body of attorneys and counselors who collectively are figuratively called the bar.
 
battery: An intentional injury or offensive physical touching of a person, made without his consent, by another person.
 
bench trial: A trial that is held in front of and decided by a judge without a jury. brief: A written document, prepared by an attorney, that contains the facts of a case, the applicable law and the legal argument of how the law applies to the facts in support of the position offered by the attorney.

bifurcation:  The court may sever, not resolve all issues, and grant a separate trial on the issue of dissolution of marriage status (dissolution of marriage "status only" judgment).  The court will reserve jurisdiction for later determination of all other pending issues, such as the division of community property.  A bifurcated proceeding may be appropriate where the parties want their marriage terminated as soon as legally possible, such as where they desire to remarry.   
 
burden of proof: Where one party in a cause of action is required to establish by evidence to prove a fact or issue raised between the parties in a cause of action.

C

charitable trust: A trust that has a purpose that benefits the community in general, such as the relief of poverty, or the advancement of education, religion, health, or other purposes which benefit the community.    

child custody: The awarding of responsibility for the care, control and maintenance of a child, by the court, to one of the parents, or to both of the parents, as in joint custody.
 
child support: The legal obligation of money to be contributed by a parent for the maintenance of their child or children. 

codicil: A supplement to a will that modifies the will.  A will is treated as having been executed on the date of the last codicil or republished by codicil.

collateral heirs: Persons who stem not from one another, but from a common ancestor, such as with brothers and sisters who stem from the intestate decedent's parents or uncle and aunts who stem from the intestate decedent's grandparents.  

commissioner: A person who is appointed an officer of the court and charged with the administration of the laws.

community property: The property owned jointly by married persons, in which the husband and the wife, or registered domestic partners, each has an undivided one-half interest. (California is a community property jurisdiction.)

confidential marital communication:  Confidential communications between a husband and wife during a valid marriage are privileged.  Both spouses hold the privilege and can refuse to disclose, and/or to prevent the other spouse from disclosing a confidential marital communication.  Divorce will not retroactively terminate the privilege.  Communications after divorce are not privileged.

conformed copy: An exact copy of a document on which has been written the items that were not copied, such as the signatures being replaced by a notation indicating that the original contained the signatures.  Conformed copies are copies of the originally filed documents that are stamped by the court filing clerk.

corpus: The corpus of a trust is the main body or principal of a trust.
 
custodial parent: The parent that has been granted the primary custody and responsibility for the care and control of the child .

D

damages: A money award to injured party as compensation for the wrong resulting directly or proximately from the wrongful act.

default judgment: A judgment that is entered against a party to an action who received notice yet has failed to answer or defend against the claim filed by the other party.

deposition: The testimony of a witness, taken in the form of oral or written questions, obtained under oath, outside of the courtroom, to be used in preparation for trial.

discharge: To release, to extinguish an obligation. 

discovery: The gathering of information in the form of facts and documents that are relevant to a cause of action and disclosed by a party at another party’s request.

dissolution: (divorce) A dissolution or marital dissolution may be sought on the grounds of irreconcilable differences or incurable insanity.  A dissolution of marriage may be sought on the grounds of irreconcilable differences, where the differences between the spouses have caused the irremediable breakdown of the marriage. 

divorce: (dissolution) A divorce is a  judgment or decree of a court that legally dissolves the marriage relationship of man and wife.  The term divorce connotes an element of fault.  In California, which is a "no fault" jurisdiction, the more correct term is dissolution or dissolution of marriage. 

E

enforce: To make a judgment effective; to compel compliance.

enjoin: A command which requires a person to cease an act.

escheat: The reversion of property in the estate of a decedent, who dies intestate (without a will), to the state, due to lack of kindred to inherit the property by intestate sucession.  

evaluation: (730 evaluation) If there is a contest between parents regarding custody of the children, an evaluation may be ordered, sometimes called a 730 evaluation.  The child custody evaluation may be ordered under Evidence code Section 730.  A 730 may be ordered when it appears to the court, that expert evidence is or may be required by the court to investigate, render a report, and testify as a witness. 

ex parte: A judicial proceeding, order or injunction that is granted for the benefit of one party and in which only one party is heard.

F

family law: (domestic relations) A branch or specialty of law concerned with matters that involve family members and relationships.  Family law practice includes legal issues such as adoption, annulment, child custody, divorce, paternity, separation,  child and spousal support.
  
family law court: A court that has jurisdiction of Family law matters such as adoption, divorce, separation, paternity, custody and support, child abuse, etc. 

finding: A decision on a question of fact and the result reached by a judge or jury.

full faith and credit:  A legal doctrine that means that a state must honor the judgment of a court in another state and give the same credit that it is entitled to in that state.

G

garnishment: A legal process where a successful plaintiff with a claim against a defendant may lay claim to the money of a third party that is owed to the defendant owing the debt to the plaintiff.  A garnishment is used to reach the debts of a defendant  due and owing to a plaintiff from a third party.

guardian ad litem: A guardian appointed by a court to represent an minor or incompetent person, for purposes of litigation.

guardianship: The legal process by which a person who is appointed by a court and given the legal duty and right to care for another person, called a ward, who is unable to legally act on their own behalf.

H

hearing: A legal proceeding without a jury and less formal than a trial in which witnesses are heard and evidence is presented.  

hearsay: Testimony in court given by a witness who relates not what he himself has seen or heard about an event that occurred out of court, but about what others have told him.
 
honorary trust: The term the court applies when a person wants to leave money and create a trust for a social purpose, such as to take care of a pet, or for an inanimate object, such as the care of a grave site.  Animals and monuments may be protected as "beneficiaries," by an honorary trust.

honorary trust for the care of an animal: An honorary trust for the care of an animal will terminate or end upon the death of the animal, or if the trust is for more than one animal, upon the death of the last surviving animal.
 
hotchpot: If a lifetime gift is found to be an advancement, the value of the gift of real or personal property when it was given is added back into the estate "hotchpot" for purposes of calculating the shares and then subtracted from the recipient's share for the purpose of a more equal division or of equalizing the shares of all children.   

I

in camera: A judicial proceeding heard in private in the judge’s chambers or in the courtroom where spectators are excluded. 

injunction: A court order that requires a person to do a specific act (mandatory injunction) or refrain from doing a specific act (prohibitory injunction).

in propria persona: (in pro per) A person who represents himself in court without an attorney.
 
intestate succession: In the absence of a valid will, the property of a wholly intestate decedent or the undisposed property of a testate decedent may pass to the decedent's heirs by operation of the laws of intestate succession.

ipso facto: By the (mere) fact itself; by the mere effect of an act or a fact. 

irreconcilable differences: The grounds of irreconcilable differences provide a substantial basis to the court for why a marriage should not continue and a dissolution granted.  The grounds of irreconcilable differences are purposely broad to encompass and represent reasons for marital discord and make irrelevant questions of fault by either of the parties.    

J

judgment: The decision of a court and the determination on the rights and claims of the parties to a cause of action. 

judicial council forms: The judicial council is a body charged with improving the administration of justice in the courts. Judicial Council forms are standardized forms, for the preparation of court documents, created by the council.

judicial notice: The recognition of a fact, by a court, as true, without formal presentation of evidence.  Judicial notice of facts excuses the party with the burden of establishing the facts, from the necessity of producing formal proof. Facts which a court may take appropriate judicial notice of are indisputable facts that are matters of common knowledge in the community, or facts which are capable of verification by easily accessible forms of unquestionable accuracy.   
 
jurisdiction: The power of the court to hear a case or cause of action, decide a matter, and render a binding judgment.  The term jurisdiction refers to the lawful authority of the court over the person, property or subject matter in question.  A court's jurisdiction may be over the subject matter, over the person of the defendant, as in an in personam action, or over the thing, as in an in rem or quasi in rem action. 

K

kin: (next of kin) Persons who are most closely related by blood and those entitled to take according to the consanguinity or statutory law, as in inheritance from a decedent. 

knowingly: A person acts knowingly when he acts with consciousness and awareness of his acts.
 
knowingly and willfully: A person acts knowingly and willfully when he acts consciously and with intention.

L

lawyer: A lawyer is a person licensed to practice law and whose profession and business it is to advise or assist clients as to their legal rights and obligations and to represent clients in legal proceedings. A lawyer is a person who prosecutes or defends persons and/or causes in courts, administrative agencies or other judicial tribunals. 

legal custody: Legal custody entitles a parent to make decisions regarding the health care, education, religion and general welfare of the child.  

legal separation: A court order whereby a married couple will live separately yet remain legally married and the court will arrange the terms of issues such as custody and support.
 
libel: A written and published statement that is false and which injures a person’s reputation or exposes him to public contempt or ridicule.

M

marital agreements: Contracts between parties concerning the division and ownership of marital property which may take the form of prenuptial agreements before marriage, or marital settlements agreements upon dissolution of marriage.

marital privilege: (see "spousal immunity" and "confidential marital communication") Neither the privilege of spousal immunity nor the privilege of confidential marital communications applies in actions between the spouses or in cases involving either spouse's children or those involving crimes against the testifying-spouse.

marriage of long duration: A marriage of 10 years of more, may be determined a marriage of long duration, as defined in Family Code section 4336. 
 
mediation: A dispute resolution process in which a neutral third party helps the disputing parties to communicate and agree upon a settlement.
 
motion: A request made to the court of judge for a ruling on a point in favor of the moving party.

N

No-fault divorce: In California, a no-fault statute provides that a divorce or dissolution may be granted on the grounds of irreconcilable differences.

notice of motion:  A written advisement, required to be served on parties to a cause of action, stating that a motion will be made to the court and stating the purpose.
 
nullity: An action declaring an assumed marriage to be null, void, invalid and that a lawful marriage does not exist for reasons such as the incapacity of the parties.
 
nunc pro tunc: A latin phrase which means "now for then".  A  phrase that is applied to an act or acts that are allowed to be done after the time when they should or should have been done, with the effect of a retroactive date.  A court may entere an order now for something actually previously done and cause it or allow it to have effect on the former date.

P

Parol Evidence: (Parol evidence rule) Where an agreement between the parties is reduced to writing, that writing is the agreement, and therefore constitutes the only evidence of it.  Any negotiations or agreements made prior to or contemporaneous with the agreement are merged into the written agreement and they are inadmissible to vary or alter the terms of the writting.  

Pendente lite: Temporary spousal support orders which continues until the judgment becomes final.  Pendente lite temporary spousal support may be order in any amount that is based on one spouses' need and the other spouses ability to pay.

per capita: ("By the Head")  Per capita distribution means that the descendants of an intestate deceased person may take a share divided equally by counting heads or per person.  This distribution approach is commonly used when all of the surviving takers are in the same generation.

per stirpes: ("By the Roots") Per stirpes distribution means that the descendants of an intestate deceased person may take by representation the share that the deceased person would have taken had the decedent survived to be an heir.  This distribution approach is commonly used when the surviving takers are from different generations.  

physical custody: Physical custody concerns the day-to-day living arrangments of the child and whether one parent will have sole physical custody or whether both parents will share in joint physical custody of the child.  

pleading: A written statement from the parties, filed with the court, in which the parties present their claims and defenses and thereby provide notice to the opposing party of the issues for trial.

post judgment modification: A change or alteration of a judgment after the judgment has been entered.

pour over trust:  A trust created by will, whereby property bequeated in a will "pours over" into the trust, which was created during the lifetime of the trustor. 

power of attorney: A power of attorney is a written document executed by a person who is the principal in which the principal authorizes an agent to act for the principal.  A power of attorney creates an agency relationship, not a trust.
 
presumption: A rule that requires a particular inference be drawn from a set of facts and renders proof of the presumed fact unnecessary upon the introduction of the evidence of the fact that gives rise to the presumption. A presumption shifs the burden of production of evidence sufficient to make a prima facie case to the other party, unless and until that presumption is rebutted.  Once the party invoking the presumption establishes the basic facts giving rise to it, the burden of establishing the nonexistence of a presumed fact is placed on the opposing party. A presumption may be rebutted, overcome or destroyed when the opposing party produces evidence that contradicts the presumed fact.

pretermitted child: A child born or adopted after the execution of a will.

pretermitted heir: A child or other descendant unintentionally omitted by a testator.

pretermitted spouse: A spouse upon a marriage following the execution of a will.

prima facie: A fact that is presumed true unless disproved by contrary evidence. Prima facie case has satisfied the minimum evidence necessary to allow the plaintiff to proceed and succeed if not rebutted or contradicted.
 
pro tanto interest: When community funds are invested in separate property, the community obtains a pro tanto interest in the appreciation of the separate property.

probate: This term refers to the proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent. Alternatively, if the decedent did not make/leave a will, it is the proceeding in which the decedent's heirs are judicially determined. 

Q

qualified domestic relations order: (QDRO) A court order, called a qualified domestic relations order, concerns the assets of a pension plan that are approved for division in a dissolution property settlement or for child or spousal support.

quantum meruit: Means "as much as deserved" and measures the recovery under an implied contract theory to pay compensation as the reasonable value of services rendered.  The law implies a promise to pay a reasonable amount for services, or labor and materials furnished, even absent a specific contract.

quid pro quo: The giving of one valuable thing for another; "this for that." 

R

res: The res is the subject matter of a trust or will.  Trust property also called the corpus or the principal. 

restraining order: An injunction by which the court forbids the defendant from doing an specific act for a period of time and until a hearing may be heard.
 
request for admission: Written statements presented by a party in a cause of action to the adverse party, requiring the adverse party to admit relevant facts, which will not need to be proved at trial.
 
revocation of will: By operation of law in California, a divorce following the execution of a will revokes all provisions in the will in favor of a former/divorced spouse.  The theory for such a revocation is that it is assumed the testator would not want the will to operate in view of the changed family status.

S

self proving affidavit:  A method whereby the witnesses sworn testimony can be secured at the time the will is executed, eliminating the need to track down the witnesses and arrange for their testimony to probate court, after the teatator's death.

separate property: Property owned by a husband or wife that is their own property, such as property owned before marriage or acquired after marriage by gift or inheritance.
 
service of process: The delivery of legal papers to an adverse party in a cause of action, which provides notice and gives the party an opportunity to appear and be heard.

set aside default or default judgment: (vacating judgment) A motion may be made to the court after the entry of judgment, within 6 months after the date of the default.

spendthrift clause:  A clause in a trust instrument whereby the "spendthrift" beneficiary is restrained and prevented from squandering his equitable interest in the trust.  A spendthrift clause in a trust instrument seeks to prohibit the voluntary or involuntary transfer of a beneficiary's interest before it is paid to the beneficiary. 

spoiliation: The intentional destruction of evidence or significant and meaningful alteration of a document or instrument.  When it is established, the finder of fact may draw the inference that the evidence destroyed was unfavorable to the party responsible for its destruction or alteration.

spousal immunity:  The immunity held by a married person whose spouse is a defendant in a criminal case, whereby that spoue may not be called as a witness, by the prosecution.  A married person may not be made to testify against his or her spouse in any criminal proceeding, regardless of whether the spouse is a defendant.  In order for this privilege to be effective, there must be a valid marriage, and the privilege lasts only during the mariage.    

spousal support: (maintenance) (see alimony)  Court ordered economic support to dependent former spouses.  Spousal support is generally of temporary  duration to allow a former spouse obtain education and job skills, enable earning power and become self-supporting.

stipulation to judgment: The parties may stipulate for judgment of all matters subject to the court's jurisdiction or expressly reserve jurisdiction over matters proposed for disposition at a later time. 

subpoena: A subpoena compels appearance at a certain time and place to give testimony upon a certain matter.

subpoena duces tecum: A subpoena duces tecum is initiated by a party in litigation, which compels the production of specific documents and material relevant to facts in issue in a pending judicial proceeding, that are in the custody and control of the person or entity served with process.      

T

temporary restraining order: A court order issued on a temporary basis in an emergency situation, until the arguments and evidence can be heard by the court and the appropriate action in the matter determined.
 
tenant in common: A form of property ownership whereby each owner (or tenant) owns an undivided interest in the property. Upon the death of a tenant in common, there is no right of survivorship in the other tenant(s) in common and the property of the deceased tenant in common passes to his estate or heirs.

tender: A readiness and willingness to perform in the case of concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness.  An offer to perform coupled with manifest ability to carry out the offer and production of the subject matter of tender.
 
testamentary: An instrument or documents is testamentary when it is written or made so as to take effect after the death of the person making the instrument or document.

testamentary capacity: To have testamentary capactiy, a testator must be of the age of majority (18 years of age), understand the nature and extent of their property, the persons who are the natural objects of their bounty, and the meaning and practical effect of their will.

testate: An individual who has died and has made and leaves a will.  

trust: An estate planning document sometimes called an inter vivos trust or a revocable living trust.  A trust is a fiduciary relationship with respect to specific property (res) wherein the trustee holds legal title to the property subject to enforceable equitable rights in a beneficiary.  

V

venue: The geographic area in which a court has jurisdiction over a matter and may hear a case or the place in which an injury or fact is to have taken place.

visitation rights: The non-custodial parent’s (parent who does not have physical custody or live with the child) right of access, granted by the court, to visit the child or children.
 
void marriage: (see nullity) A marriage where the parties could not enter into a valid marriage and an assumed marriage does not exist. voidable marriage: A marriage which is valid when entered into and remains valid until either party obtains a court order that determines it is void.

W

wage garnishment: A legal proceeding whereby the employer, of a person who has a judgment rendered against them, is required to deduct a portion of the person’s wages in payment and satisfaction of the judgment.

waiver: To intentionally, voluntarily and knowingly forfeit or give up a legal right.

will: A written instrument executed with certain formalities that is testamentary in character, revocable during the lifetime of the maker, and expresses the wishes of that person, who is the testator, regarding the distribution of the testator's property, after death.
          

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