Essay Study

Question 1

Jurisdiction

Answer 1

To hear a family-related dispute, the court must have subject-matter and personal jurisdiction over the parties. Florida law requires at least one spouse to be a resident of the state for six months before commencing a matrimonial action. If the parties did not reside in FL for the entire six-month period, the court will consider a party’s intent to make Florida her principal residence

Significant-connection jurisdiction: a court can enter or modify an order if (i) no other state has or accepts home-state jurisdiction, (ii) the child and at least one parent have a significant connection with the state, and (iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships

Exclusive continuing jurisdiction: the court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over the matter until the court determines that neither the child nor the child’s parents reside in the state or the child no longer has a significant connection with the state

Temporary emergency jurisdiction: a court that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection

Question 2

Marriage

Answer 2

Requirements: (i) consent (18 or 16-17 w/ consent of parents unless woman is pregnant); (ii) exchange of consideration via mutual promises; and (iii) acceptance or imposition of rights and obligations associated with marriage

Waiting period is 3 days, unless the parties are non-residents or good cause can be shown

Reasons for not issuing license: (i) one party is married to someone else; (ii) parties are related (consanguinity); (iii) the marriage is a sham; or (iv) parties are incapable of understanding the act

Question 3

Divorce

Answer 3

Florida is considered a “no-fault” divorce state. The no-fault grounds for divorce eliminate fault and wrong as a ground for dissolution. A marriage may be dissolved when the court finds that the marriage is irretrievably broken. For the court to grant a divorce, there must be testimony of at least one spouse with regard to the status of the marriage (testimony of either spouse is sufficient)

If the parties have minor children of the marriage or the responding party denies that the marriage is irretrievably broken in his responsive pleading, then the court may (i) continue the proceedings for a period not to exceed three months for the parties to attempt reconciliation, (ii) order the parties to undergo counseling, or (iii) order the parties to take any actions that the court feels may be in the best interests of the parties and the minor children

Question 4

Annulment

Answer 4

Impediment rendering the marriage void or voidable must exist at the onset of the marriage. The most common defenses are laches (not timely) and ratification

Void for: (i) prior existing marriage; or (ii) mental incapacity

Voidable for: (i) incest; (ii) age; (iii) impotence; (iv) intoxication; (v) fraud, misrepresentation, duress, coercion, force; (vi) lack of intent

Question 5

Division of Property

Answer 5

Florida is an equitable distribution state. Upon dissolution of a marriage, marital property is divided in a fair and equitable manner. Each party does not necessarily get 50% of the marital property. While Florida law commences with the premise that the parties will receive an equal distribution of all marital property, if the court is presented with justification for unequal distribution, the court, which has broad discretion in fashioning an equitable distribution award, may do so. The distribution of the parties’ marital property should be equal, unless there is justification for unequal treatment based on a number of factors, including the length of the marriage, the economic circumstances of each spouse, and the contribution of each spouse to the marriage, including homemaking services, child rearing, and education of the children

Question 6

Marital Assets

Answer 6

Generally, property acquired during the marriage is marital property. The assets include: (i) those acquired by either or both spouses during marriage, other than assets acquired through gift, bequest, or descent; (ii) enhancement of, or appreciation in, value of nonmarital assets as a result of the efforts of the other spouse during marriage or from the contribution or expenditure of marital funds; (iii) interspousal gifts during the marriage; and (iv) all benefits accrued during the marriage in retirement plans, pension plans, profit-sharing plans, etc. (at present value, both vested and nonvested)

Question 7

Debts

Answer 7

As with assets, liabilities incurred by either spouse during the marriage are presumed to be marital unless that presumption is rebutted. The court will also equitably divide marital liabilities or debts. The date for identifying whether property, assets, and liabilities are marital or nonmarital is the earliest of the following dates: (i) date of the filing of the complaint for divorce; (ii) date that a valid property settlement agreement was executed; (iii) date provided in the parties’ valid property settlement agreement; or (iv) date provided by the court that has been determined to be fair and equitable under the circumstances

Question 8

Factors in determining equity

Answer 8

• Each spouse’s contribution to the marriage;
• Each spouse’s contribution to the care and education of the children;
• Services of the homemaker;
• Economic circumstances;
• The duration of the marriage;
• Each spouse’s career and education sacrifices; and
• The desirability of retaining any asset free from claim and hostile interference by the other spouse

Question 9

Required Disclosures

Answer 9

Both parties have an ongoing duty to disclose: (i) financial affidavits, (ii) previous 3 years of tax returns, (iii) loan applications, and (iv) financial statement for the past year

Question 10

Interim Distribution

Answer 10

The court can order interim distribution of property during the pendency of divorce, which will be credited to the final property allocation. For attorney’s fees to be granted, the spouse must demonstrate a lack of funds in comparison to the other party

Question 11

Alimony - Factors Considered

Answer 11

Alimony is awarded if one spouse cannot provide for her own needs with employment. Alimony, while typically paid over a period of time, may take the form of a lump-sum payment. To determine the proper alimony type and amount, the court considers the following factors: the financial resources of both spouses, the standard of living during the marriage, the time it will take for a spouse to find employment or complete education or training for a job, the duration of the marriage, contributions to the marriage, such as child-rearing, the age and health of the parties, the children, and any sources of income for the parties

Question 12

Alimony - Pendente Lite

Answer 12

Pendente lite, or temporary, alimony is available only from the time of separation until the time that the marriage of the parties is dissolved

Question 13

Alimony - Bridge-the-Gap

Answer 13

Bridge-the-gap alimony is awarded to allow a party to transition from being married to being single. It is designed to help a party with legitimate, specific short-term needs. It may not exceed two years and may not be modified. It terminates upon the death of either party or the remarriage of the receiving party

Question 14

Alimony - Rehabilitative

Answer 14

Rehabilitative alimony is for a limited period of time to assist a party in establishing self-support, such as until the spouse receives education, training, or employment. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse. May be terminated or modified if there is a substantial change in circumstances (remarriage does not necessarily terminate)

Question 15

Alimony - Durational

Answer 15

If none of the other categories is suitable, durational alimony may be awarded for a short period. Following a short-term or moderate-term marriage (or a long-term marriage without an ongoing need for permanent support), the court may order durational alimony to provide economic assistance to a party for a set period. The length of durational alimony may not be greater than the length of the marriage

Question 16

Alimony - Permanent

Answer 16

Permanent alimony is an award for the remainder of the dependent spouse’s life, unless certain circumstances occur. Permanent alimony is awarded to provide for needs and life necessities as established during a marriage for the party who lacks the financial ability to meet such needs after dissolution. To award permanent alimony, the court must include a finding that no other form of alimony is fair and reasonable under the parties’ circumstances

Long-term marriage (17+ years): if appropriate considering standard of living
Moderate-term marriage (7-16 years): appropriate based on clear and convincing evidence
Short-term marriage (0-6 years): written findings of exceptional circumstances

Modification for substantial change in circumstances. Voluntary retirement (of receiver only) may be considered in determining substantial change

Question 17

Child Support

Answer 17

In Florida, the amount of child support is set by statute. It is calculated based on an income share model, adding the incomes of both spouses as if all continued to live together. Courts are reluctant to award a child support amount below the statutory guidelines, but have the discretion to do so. Courts consider the age of the children, unusual needs and obligations, the children’s standard of living, their station in life, and the financial status and ability of each parent in determining whether a deviation is warranted. Child support provisions generally cease when a child turns 18, unless the child is (1) physically or mentally dependent, or (2) a dependent who is between ages 18 and 19, in high school, and studying to graduate

Question 18

Establishing Paternity

Answer 18

• Genetic testing (95% match or higher)
• Marital presumption - child born of valid marriage
• Estoppel - husband may be required to pay child support when: (i) he represented he would provide for the child, (ii) the wife relied on this representation, and (iii) the wife suffered an economic detriment as a result of the reliance
• Express acknowledgement by the father in writing

Question 19

Child Support Order

Answer 19

The order must: (i) provide for child support to terminate on a child’s 18th birthday; (ii) provide a schedule stating the amount of the monthly support that will be owed for any remaining children after one or more of the children are no longer entitled to receive support; and (iii) provide the specific date that the reduction or termination of support becomes effective

Question 20

Child Support Modification

Answer 20

The court may always modify child support, but it typically requires a substantial change. A substantial change can include a change in occupation, an increase in income, a decrease in health, or remarriage. However, the payor’s voluntary reduction in income will not reduce the amount of child support

Question 21

Parental Responsibility/Timesharing

Answer 21

In Florida, both parents have parental responsibility and timesharing with their children. Each minor child is to have frequent, continuing contact with both parents and the parents are encouraged to share the rights, responsibilities, and joys of raising their children. Shared parental responsibility generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child. The court prefers a shared parental responsibility arrangement unless it is determined to be detrimental to the child’s best interests. Neither parent has a superior claims over the other parent regardless of the age of the child

In determining the best interests of the children, the court may consider a variety of factors, including continuity of care in the child’s life, a willingness to promote a relationship with the noncustodial parent and to be reasonable when changes are required, and the wishes of the child, if of a mature age

Question 22

Sole Parental Responsibility

Answer 22

In Florida, the court prefers a shared parental responsibility arrangement unless it is determined to be detrimental to the child’s best interest. Sole parental responsibility will only happen when: (i) shared responsibility is not in the best interest of the child, (ii) the other parent is unfit and unable to provide care, (iii) one parent has all decision-making rights

Question 23

Timesharing Schedule

Answer 23

A timesharing schedule is a plan specifying which parent minor children will be with at certain times, including overnights and holidays, as well as providing guidelines for extra-curricular activities, education, child care and foreign travel. The parents are encouraged to create a timesharing schedule, but if they cannot agree or if the court does not approve the plan, the court will establish the schedule. The court will order a time-sharing schedule that is in the best interest of the children

Question 24

Parenting Plan

Answer 24

The parenting plan must describe the responsibility for the daily tasks associated with child rearing and how such responsibility will be shared between the husband and wife, the timesharing schedule, the methods that each party will use to communicate with the child, and the responsibility for communication about and completion of forms relating to health, education, and other activities

Question 25

Shared Responsibility

Answer 25

Florida courts emphasize that both parents retain shared responsibility regardless of the timesharing schedule (decisions re healthcare, religious upbringing, education, etc.). Florida law, however, provides that in order to facilitate what is in the child’s best interest, one parent should be selected and designated the primary caretaker of the child even when a shared arrangement exists

Question 26

Relocation

Answer 26

Relocation will typically continue a substantial change in circumstances warranting modification. A parent wishing to relocate more than 50 miles from current resident must obtain written consent from the other parent, or show proof of employment in the new location and get permission from the court

If the court determines there is a reasonable risk of one parent removing the child from Florida or the U.S., the court may:

• Require the surrender of the child’s passport
• Require the posting of bond or other security
• Restrict the ability of the parent to take the child to a country not party of The Hague Convention absent written agreement
• Order that the child not be removed from the state or country without express notarized permission of both parents or by court order

Question 27

Timesharing Modification

Answer 27

Courts may modify timesharing and parenting plan determinations upon a showing of substantial, material, and unanticipated change of circumstances affecting the child’s welfare (desire to promote stability)

Question 28

UCCJEA

Answer 28

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been enacted in all states, Florida retains jurisdiction over a timesharing matter despite a relocation

The Florida court retains exclusive continuing jurisdiction until the court determines that: (i) the parties no longer reside in the state; or (ii) the child no longer has a significant connection to the state, or any substantial evidence connected to the child’s condition is no longer available in the state

Question 29

Parens Patriae

Answer 29

The state has parens patriae authority to ensure that children receive reasonable medical treatment necessary for the preservation of life

Question 30

Prenuptial (Premarital) Agreements

Answer 30

Prenuptial agreements are valid in Florida. A valid marriage is sufficient consideration for a premarital agreement. As a result, the agreement becomes effective upon the date of the marriage. A premarital agreement will be enforceable if there has been full disclosure, the agreement is fair and reasonable at the time it is entered into, and the agreement is voluntary. Additionally, a premarital agreement is subject to the Statute of Frauds and must be in writing and signed by the party to be charged. They are strictly scrutinized for lack of good faith and undue influence. In determining reasonableness, the court will consider the ages of the parties, their wealth, and their health. Invalidity of the agreement must be proven by clear and convicting in evidence. Even if it is found valid, it may still be set aside if the result is to leave one spouse woefully impoverished to the extent that she becomes dependent upon the state

Question 31

Postnuptial Agreements

Answer 31

Postnuptial agreements can determine property division and spousal support, and may affect child support and custody as long as it never adversely affects the child’s best interests. These contracts do not fall within the Statute of Frauds, but the subject matter of the contract may fall into the statute (e.g. A contract to convey land from one spouse to the other). The right to receive alimony may be expressly waived for consideration. However, the right to temporary alimony cannot be contracted away nor can the right to receive child support. An exchange of mutual promises is sufficient to show consideration

If the agreement doesn’t fairly provide for the contesting spouse, a court won’t uphold the agreement unless a full and fair financial disclosure was made by the defending spouse before the agreement was signed

Question 32

Property Settlements

Answer 32

Antenuptial and postnuptial agreements to settle property rights are generally binding and specifically enforceable. If an agreement, considered as a whole, plainly shows the parties intended it to be a final settlement of obligations concerning property of any kind, the agreement is a property settlement