Family Law Flashcards
MAIN TOPICS ON FAMILY LAW
- Pre-Marriage/Getting Married
- Terminating Marriage
- Economic Issues Around Dissolution
- Matters Relating to Children
- TOPIC DIVISION
PROPERTY DIVISION GENERALLY
Florida is an equitable distribution state
Steps for Dividing Property:
- Categorize the Assets
- Distribute the Assets
CLASSIFICATION OF ASSETS
Separate Property v. Marital Property
SEPARATE PROPERTY
Six Categories of Separate, Non-Marital Assets
- Property Owned Before the Marriage
- Gift of Inheritance Received by one Spouse In Their Sole Name During the Marriage
- Anything in exchange for the first two properties (property exchanged fro separate property)
- Passive Income From Separate Property
- Pain and Suffering Recovery
- By Written Agreement of the Parties
MARITAL ASSETS AND LIABILITIES
Anything that a married couple owns other than the categories of separate property listed on card 5
SPECIAL CLASSIFICATION ISSUES
- Appreciation in the value of a non-marital asset during marriage that is the result of the work, energy, and effort of either spouse is treated as a marital asset. Note - only the appreciation in value, not the full value is considered a marital asset, the original value pre-marriage is separate property
- Marital Money Used to Pay Down Separate Debt - the value of the property is apportioned between the separate and marital estates. The amount paid for before the marriage is separate property, and the amount paid down during the marriage is marital property. If the property appreciated in value, then that amount is divided in proportion to the contribution of separate and marital funds used to pay for the property.
- Marital Debt - If either spouse incurs debt during the marriage, that is a marital asset
EQUITABLE DISTRIBUTION
Each party keeps their separate property. NO JUDICIAL DISCRETION HERE
With respect to marital property, a judge will divided it based on principles of equitable distribution.
- Presumption of Equal Division - unless there is justification for unequal treatment
Factors Considered: Court has a lot of discretion here - court will consider factors that are just and appropriate when making an award - common ones include
- Age and Physical/Mental Health - higher age or poor health conditions may justify a larger award in property distribution
- Income/Education Level/Job Skills
- Custody of Children
- Contributions to the Family’s Economic Success - earning income and also contributions to the home and family.
- Dissipation of Marital Assets - for example, was one party a heavy gambler who gambled away marital assets? Might reduce the amount of property they’re distributed
METHOD OF DISTRIBUTION
In Kind: giving specific assets to each spouse
Cash Award: Court can value the assets and order one party to make a cash payment (lump-sum or installments) to the other
TAX CONSEQUENCES OF PROPERTY DISTRIBUTION
Property distribution is not taxable 0 payments made as part of a property distribution are not income to the recipient spouse and may not be used as a deduction by the payor spouse
BINDING EFFECTS OF PROPERTY AGREEMENTS
Generally binding and specifically enforceable - cannot be modified by the court.
ALIMONY
Continuing the duty of spousal support after the marriage ends
Alimony generally is: financial support that a person is ordered by a court to give to their spouse during separation or following divorce
Generally based on need and not on fault. FL courts can consider adultery in making the award, but the trend among courts is to consider it only if the adultery depleted assets or is otherwise relevant for financial reasons
Judicial Discretion is limited by the specific and precise guidelines that courts must follow in the following categories:
- Bridge the Gap Alimony
- Rehabilitative Alimony
- Permanent Alimony
- Durational Alimony
BRIDGE-THE-GAP ALIMONY
Designed to help a party transition from being married to independent economic life.
Can’t exceed two years
Can’t be modified
Terminates upon the death of either party or remarriage of the recipient
REHABILITATIVE ALIMONY
Awarded for a limited time to allow the recipient to pursue education or job training and become economically self-sufficient. Requesting party must submit a concrete plan to the court.
Modifiable (including potential termination) if there’s a substantial change in circumstances, noncompliance with the rehabilitative plan, or the plan is completed
PERMANENT ALIMONY
Provides for the needs of a party who lacks the financial ability to meet their own needs following dissolution.
To award the court must find that there is no other form of alimony that is fair and reasonable under the circumstances.
Modifiable and can be terminated if either party experiences a substantial change in economic circumstances. Terminates on the death of either party or remarriage of the recipient
Standard of proof for obtaining vary based on the length of the marriage
- Long-Marriage - 17 years or more - needs to show only justification based on a preponderance of the evidence
- Marriage of Moderate Duration - 7 - 17 years, requesting party must show they are entitled to alimony by clear and convincing evidence
- Short Marriage - Less than 7 years - the party seeking alimony must show exceptional circumstances
DURATIONAL ALIMONY
Provides economic assistance for a set period of time. Awarded when the requesting party cannot meet the burden of proof for permanent alimony
Duration cannot exceed the length of the marriage.
Modifiable and terminates on the death of either party or the recipient’s remarriage
AWARDING, MODIFYING, AND ENFORCING ALIMONY
Factors to Consider:
- Age and Physical and Mental Health of the Parties
- Assets Owned by each party
- Custody of Children
- Standard of living during the marriage
- Duration of the marriage
Tax Consequences: Since 2019, alimony payments are not a taxable event (payor can’t deduct payments, and they aren’t treated as income to the recipient)
Modification - alimony can be modified upon a showing of a substantial change in circumstances or financial ability of either party
If only a lump sum or no alimony was awarded initially, and the court did not reserve jurisdiction to award alimony in the future, there is no award to modify, and all future rights to alimony are terminated
Termination Based on Cohabitation - if a party RECEIVING alimony cohabits with someone but doesn’t remarry, the court may terminate alimony - discretion of the court - court will consider only if there is an economically supportive relationship between the recipient and their new romantic companion
Enforcement Mechanisms:
- Wage Reduction: court order addressed to the payor’s employer, instructing the employer to take money out of that person’s paycheck and forward it to the recipient
- Asset Seizure: They party owed alimony can also go after the payor’s assets - preference is to seize a bank account and take the money out. If the payor doesn’t have liquid assets, the other spouse can seize other personal or real property and auction it off
- Contempt Order: If a spouse fails to pay alimony as ordered, the other party can go after them for contempt of court.
FULL FAITH AND CREDIT
Alimony decrees are entitled to full faith and credit only if they are final and non-modifiable. Out-of-state divorce decree may be final, but an alimony decree that is subject to modification is nonfinal
CHILD SUPPORT
Both parents have a duty to support biological children
PARENTAL DETERMINATIONS
Presumption for Children Born During Marriage: if a child is born during the marriage the husband is presumed to be the father (born during the marriage or 285 days after divorce or death of the husband)
Children Born to Unmarried Woman: if the mother is single, the father can acknowledge paternity and sign various documents to be acknoledged as the child’s legal father
- Paternity Suit: Determination of paternity is a statutory cause of action in FL: mother, father, or child (through a guardian ad litem) can bring the action. Must be filed within 4 years after the child reaches the age of majority - almost always ordered with DNA testing
- Results of Finding Parentage - a duty to support arises when paternity or maternity is established. Adjudication of parentage is legally binding for all other issues where a parent-child relationship might be important (inheritance, intestacy, or government benefit programs)
Disestablishment of Paternity: in some cases, man may file a petition in circuit court to disestablish paternity or terminate a child support obligation if he discovers that his is not the biological father of the child after there’s been an initial determination of paternity or a child support order.
A court may not set aside child support order or paternity finding if 0 AFTER discovering that he was not the bio dad, the man took certain actions that tended to show that he assumed responsibility for the child
SUPPORT ORDERS AND GUIDELINES
Generally, the parent who lives with the child won’t be subject to a judicial order to pay child support
Typically this is a collateral consequence of a dissolution or paternity proceeding
But a support order can be sought independently of those proceedings if necessary
Guidelines: statutory guidelines, totals both parents’ net incomes in a statutory chart and allocates it between the parents according to incomes
- departure justified on special needs, seasonal variations in income, child’s age, special shared parental arrangement
- assets
- IRS Dependency exemption
UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA)
Makes state borders disappear by combining long arm jurisdiction with the principles of continuing, exclusive jurisdiction with the home state of the child
Continuing Exclusive Jurisdiction: Only one controlling, enforceable support order exists at any given time. All subsequent states must defer to the very first child support order that has been entered as long as either parent or the child continues to live in that forum
Enforcing a Support Order: allows for child support orders entered in one state to be enforced in another. Procedurally, enforcement in the second state can occur in two ways
- Direct enforcement allows the obligee to mail the order to the obligor’s out-of-state employer, automatically triggering withholding unless there is a timely objection
- Registration: the issuing state sends the order to the state where the obligor resides. It is registered and filed as a foreign judgment, and then the order is subject to the same enforcement procedures as if the order had been issued in that state
CHILD CUSTODY
Court determines all matters relating to parenting and time-sharing in accordance with the best interests of the child
Modern term: “parental responsibility”
Shared PR is preferred - must order unless it would be detrimental to the child
PARENTAL RELOCATION
If the custodial parent wants to move at least 50 miles from their current residence, the parent must obtain permission from the court.
If the other parent objects to the move, the court will focus on the best interests of the child
Move in violation of the Law - may be a factor in modifying the parenting plan, or taking other action
