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