Family Law Flashcards
Dissolution of Marriage causes
No fault
dead marriage: irretrievably broken (unilateral) OR A party has been adjudicated incompetent for at least 3 years
Court ordered counselling conditions
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
EQUITABLE DISTRIBUTION OF PROPERTY COURT OBJECTIVE
Court strive for equality unless the court thinks there is justification for unequal treatment
LIST OF MARITAL ASSETS
- Assets acquired during the marriage (except gift/devise)
- Appreciation of non marital assets due to marital funds
- Interspousal gifts during the marriage
- Retirement assets accrued during the marriage
- Commingling of non-marital with marital
NON-MARITAL ASSET
Assets acquired before the marriage
Gifts or Devises by third-party
FACTORS IN DIVISION OF PROPERTY
Contribution to marriage Contribution to care and education of children Duration of marriage Homemaker Career/Education Sacrifices Equity Tax Treatment
ALIMONY MAIN CONSIDERATION
Need v. Ability to Pay
It should not cause the payor to have less income than the payee
TYPES OF ALIMONY: [P]ABST [B]LUE [R]IBBON [D]IVORCE [P]ARTY
Pendante Lite Bridge the gap Rehabilitative Durational Permanent
PENDENTE LITE
Temporary alimony - immediate living expenses and costs during dissolution proceeds
Always available
there must be need and ability to pay
BRIDGE-THE-GAP
Financial support for spouse transition from being married to single
Duration up to 2 years
Amount cannot be modified in amount or duration
REHABILITATIVE ALIMONY
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
DURATIONAL ALIMONY
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
PERMANENT ALIMONY
- 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
STATUTORY ALIMONY FACTORS
SAD FRET ME
[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
ATTORNEY’S FEES AS ALIMONY?
No. it is not a form of alimony, but typically analysed along with pendente lite.
SHARED PARENTAL RESPONSIBILITY - BEST INTERESTS OF THE CHILD
Primary standard for parenting, time-sharing, and support
Includes:
- ability to provide stability
- child’s preference
- willingness to allow and facilitate sharing
INVOLVED PARENTS
Court will prefer that both parents are involved
No automatic preference
Primary caretaker considered
Forfeiture of right to shared parental responsibility
PARENTING PLAN
How responsibility for the child is shared
- time sharing
- parental communication on the child
- designation of responsibilities and decision making power
RELOCATION OF CHILDREN
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
RESTRICTIONS ON RELOCATION
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
PERMANENT RELOCATION OF PRIMARY RESIDENCE
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
FACTORS FOR PERMANENT RELOCATION OF PRIMARY RESIDENCE
ERGPAIC
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
COURT JURISDICTION AFTER RELOCATION
FL has adopted the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
The court that issued the original SPR order retains jurisdiction
CHILD SUPPORT
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
CHILD SUPPORT: STATUTORY GUIDELINES
“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”
MARITAL AGREEMENTS - PRENUPTIAL AGREEMENT
Subject to Statute of Frauds
No consideration
Closely scrutinised for: bad faith fraud duress coercion overreaching
MARITAL AGREEMENTS - POSTNUPTIAL AGREEMENT
Not automatically subject to statute of frauds
Financial disclosure required
Closely scrutinised for: bad faith fraud duress coercion overreaching
WHAT THESE AGREEMENTS CAN WAIVE AND CANNOT WAIVE
Waive
- division of property
- inheritance
- homestead
No Waiver
- SPR
- Child Support
- Alimony (agreement can be considered)
BAD FAITH
Minimise the significance of the agreement
discouragement from seeking counsel
FRAUD
Lies and falsified information
DURESS/COERCION
Pressure
Threats
Last minute prenups
OVERREACHING
Taking advantage of the other spouse
DISCLOUSURE: ALTER INHERITANCE
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.
DISCLOSURE OF ASSETS: DISSOLUTION RIGHTS
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
ADOPTION: TERMINATION OF PARENTAL RIGHTS
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
ADOPTION
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
WHO CAN BE ADOPTED? WHO CAN BE ADOPTIVE PARENTS?
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
ADOPTION PROCEDURE
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
