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Florida Topics > Family Law > Flashcards

Family Law Flashcards

1
Q

Dissolution of Marriage causes

A

No fault

dead marriage: irretrievably broken (unilateral) OR A party has been adjudicated incompetent for at least 3 years

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2
Q

Court ordered counselling conditions

A

IF Minor Child or Party denies that the marriage is irretrievably broken

THEN Counselling, delay proceedings by 3 months, other actions in the best interest of parties

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3
Q

EQUITABLE DISTRIBUTION OF PROPERTY COURT OBJECTIVE

A

Court strive for equality unless the court thinks there is justification for unequal treatment

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4
Q

LIST OF MARITAL ASSETS

A
  1. Assets acquired during the marriage (except gift/devise)
  2. Appreciation of non marital assets due to marital funds
  3. Interspousal gifts during the marriage
  4. Retirement assets accrued during the marriage
  5. Commingling of non-marital with marital
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5
Q

NON-MARITAL ASSET

A

Assets acquired before the marriage

Gifts or Devises by third-party

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6
Q

FACTORS IN DIVISION OF PROPERTY

A 
Contribution to marriage
Contribution to care and education of children
Duration of marriage
Homemaker
Career/Education Sacrifices
Equity
Tax Treatment
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7
Q

ALIMONY MAIN CONSIDERATION

A

Need v. Ability to Pay

It should not cause the payor to have less income than the payee

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8
Q

TYPES OF ALIMONY: [P]ABST [B]LUE [R]IBBON [D]IVORCE [P]ARTY

A 
Pendante Lite
Bridge the gap
Rehabilitative
Durational
Permanent
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9
Q

PENDENTE LITE

A

Temporary alimony - immediate living expenses and costs during dissolution proceeds

Always available
there must be need and ability to pay

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10
Q

BRIDGE-THE-GAP

A

Financial support for spouse transition from being married to single

Duration up to 2 years

Amount cannot be modified in amount or duration

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11
Q

REHABILITATIVE ALIMONY

A

Assist spouse to become self-sufficient (education/training)
Specific rehabilitative plan

Can be modified/terminated if:

  • change in circumstances
  • noncompliance with plan; or
  • completion of plan
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12
Q

DURATIONAL ALIMONY

A

Economic assistance for a set time
Available when permanent alimony isn’t there
Duration cannot exceed duration of the marriage

Amount can be modified or terminated if there is a substantial change of circumstances
Length of the award cannot be modified unless exceptional circumstances

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13
Q

PERMANENT ALIMONY

A
  • Given if spouse lacks financial ability to be self-sustaining
  • Given when no other alimony is fair/reasonable
  • May be terminated on substantial change in circumstances

0-7: given with written findings of exceptional circumstances
7-17: clear and convincing evidence of need based of statutory factors
17+: given if appropriate based on statutory findings

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14
Q

STATUTORY ALIMONY FACTORS

SAD FRET ME

A

[S]tandard of living during marriage
[A]ge/emotional/physical condition
[D]uration

[F]inancials
[R]esponsibilties for minor children
[E]arning capacity
[T]ax treatment

[M]arital contribution
[E]quity

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15
Q

ATTORNEY’S FEES AS ALIMONY?

A

No. it is not a form of alimony, but typically analysed along with pendente lite.

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16
Q

SHARED PARENTAL RESPONSIBILITY - BEST INTERESTS OF THE CHILD

A

Primary standard for parenting, time-sharing, and support
Includes:
- ability to provide stability
- child’s preference
- willingness to allow and facilitate sharing

17
Q

INVOLVED PARENTS

A

Court will prefer that both parents are involved
No automatic preference
Primary caretaker considered
Forfeiture of right to shared parental responsibility

18
Q

PARENTING PLAN

A

How responsibility for the child is shared

  • time sharing
  • parental communication on the child
  • designation of responsibilities and decision making power
19
Q

RELOCATION OF CHILDREN

A

Restrictions on relocating a child
Considerations
- risk that parent will relocate the child
- impact of permanent relocation on child custody
- court jurisdiction if there is relocation

20
Q

RESTRICTIONS ON RELOCATION

A

If there is a risk of relocation, impose restriction on travel like

  • Permission of both parents
  • surrender the passport
  • post a bond or other security
21
Q

PERMANENT RELOCATION OF PRIMARY RESIDENCE

A

Custodial parent can relocate up to 49 miles from current residence without violating SPR

If they want to relocate 50 miles or more:

  • obtain written consent of everyone entitled to time-sharing OR
  • serve a petition to relocate which includes details of the move, and proposed revised plan for sharing and transportation

To object, other parent must do it within 20 days after service, and in writing

22
Q

FACTORS FOR PERMANENT RELOCATION OF PRIMARY RESIDENCE

ERGPAIC

A

Employment/economic circumstances
Reasons for relocation
Good-faith act
Past compliance
Abuse history
Involvement and relationship with parents, siblings, etc.
Child’s age, needs and impact on the child

23
Q

COURT JURISDICTION AFTER RELOCATION

A

FL has adopted the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
The court that issued the original SPR order retains jurisdiction

24
Q

CHILD SUPPORT

A

Non-custodial parent pay custodial parent for the benefit of the child

Cannot be waived

Ends when child is 18, except

  • child is mentally/physically dependent
  • 19 and in high school
25
Q

CHILD SUPPORT: STATUTORY GUIDELINES

A

“The court will refer to a statutory scale, and perform the applicable calculation, based on income and need. Departure from the guidelines by more than 5% requires written findings and justification”

26
Q

MARITAL AGREEMENTS - PRENUPTIAL AGREEMENT

A

Subject to Statute of Frauds
No consideration

Closely scrutinised for:
bad faith
fraud
duress
coercion
overreaching
27
Q

MARITAL AGREEMENTS - POSTNUPTIAL AGREEMENT

A

Not automatically subject to statute of frauds
Financial disclosure required

Closely scrutinised for:
bad faith
fraud
duress
coercion
overreaching
28
Q

WHAT THESE AGREEMENTS CAN WAIVE AND CANNOT WAIVE

A

Waive

  • division of property
  • inheritance
  • homestead

No Waiver

  • SPR
  • Child Support
  • Alimony (agreement can be considered)
29
Q

BAD FAITH

A

Minimise the significance of the agreement

discouragement from seeking counsel

30
Q

FRAUD

A

Lies and falsified information

31
Q

DURESS/COERCION

A

Pressure
Threats
Last minute prenups

32
Q

OVERREACHING

A

Taking advantage of the other spouse

33
Q

DISCLOUSURE: ALTER INHERITANCE

A

If the marital agreement purports to alter a spouse’s inheritance (from a will, intestacy, trust, homestead, etc.), if:
Prenuptial agreement - No financial disclosure is required for the provision to be valid.
Postnuptial agreement: Fair financial disclosure is required, or the provision is invalid.

34
Q

DISCLOSURE OF ASSETS: DISSOLUTION RIGHTS

A

Provision to alter spousal rights to assets and income upon divorce is voided when:

  • The agreement was unconscionable when it was executed AND,
  • Before execution of the agreement, the party disputing the agreement:
    - No fair and reasonable disclosure;
    - Did not waive the right to receive such disclosure (in writing); AND
    - Did not already have an adequate knowledge of the wealthier spouse’s assets and count not have reasonably been expected to know
35
Q

ADOPTION: TERMINATION OF PARENTAL RIGHTS

A

Court terminates parental rights to grant adoption after

  • full evidentiary hearing
  • and decision is based on clear and convincing evidence that each person required to consent to adoption has:
    • consented
    • executed an affidavit of non-paternity
    • been served notice of adoption plan but has failed to file a written answer or appear at a hearing
    • abandoned the minor
    • judicially declared incapacitated
    • unreasonably withholding consent to the adoption
36
Q

ADOPTION

A

Once adoption is complete, the child is legally the child of the adoptive parents
- entitled to rights as if they were born into the marriage

FL recognizes adoptions from other jurisdictions as long as they were issued pursuant to due process of law

37
Q

WHO CAN BE ADOPTED? WHO CAN BE ADOPTIVE PARENTS?

A

Any minor or adult

Married couple, married/single individual

Person with disability can adopt unless the disability makes them incapable of being an effective parent

38
Q

ADOPTION PROCEDURE

A

Petition for adoption (including child’s prospective adopted name) fmay be filed 60 days after Termination of Parental Rights

Department of Children and Families must complete and file a report dealing with suitability of prospective adoptive home

Florida Topics (7 decks)

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