Family Law Flashcards
What steps must a court take to determine an equitable distribution scheme?
The Court must take the following four steps in determining an equitable distribution scheme:
- (1) identification of all marital and non-marital assets and liabilities;
- (2) classification of assets and liabilities as either marital or non-marital. Non-marital property is set aside for the owner spouse prior to dividing the marital estate;
- (3) valuation of assets and liabilities (the date of valuation is discretionary); and
- (4) distribution of assets and liabilities
What factors must a court consider in determining if an unequal distribution scheme is warranted? What are the methods of distribution?
Once the assets have been classified, separate property is kept by the parties. Marital property is divided by the court. The presumption is that property is divided equally unless there is justification for unequal distribution. Note that this issue is entirely separate from alimony and child support. Factors considered in determining whether an unequal distribution scheme is warranted includes:
- (1) Age and physical and mental health of the parties
- (2) Income, education level, and job skills of the parties
- (3) Custody of children and desirability of retaining the marital home for raising them
- (4) Contributions to the family’s economic success by each party
- (5) Dissipation or waste of marital assets by either party
- (6) Any other factors the court deems necessary
Distribution may be either in kind, or a cash award.
What is considered marital property?
In Florida, categories of marital property include:
- (a) Assets acquired by either or both spouses during the marriage, other than through gift, bequest, or descent
- (b) Enhancements of, or appreciation in, value of non-marital assets as a result of the efforts of the other spouse during the marriage or from contribution to or expenditure of marital funds
- (c) Interspousal gifts during the marriage
- (d) All benefits accrued during the marriage in retirement plans, pension plans, profit-sharing plans, etc.
- (e) Earnings and wages
- (f) Property held as tenants by the entirety
What is considered non-marital (separate) property?
In Florida, categories of separate property include:
- (a) Assets acquired by either spouse prior to marriage
- (b) Assets acquired by non-interspousal gift, bequest, descent, or devise
- (c) Passive income derived from non-marital assets during the marriage unless the income was used or relied on by the parties as a marital asset
- (d) Anything agreed to by the parties to be non-marital
- (e) Property exchanged for separate property
- (f) Pain and suffering recoveries from a separate lawsuit
What are the general principles of child custody and what must be described in a parenting plan?
The court determines all matters relating to parenting and time-sharing in accordance with the best interests of the child. The modern trend is to refer to both physical and legal custody as “parental responsibility.” Florida prefers shared parental responsibility; the court must order shared responsibility unless it would be detrimental to the child.
A parenting plan is the document that governs the relationship between the parents with respect to decisions affecting the child, including:
- (1) daily tasks;
- (2) time-sharing;
- (3) responsibility for healthcare, school, and activities; and
- (4) the methods and technologies used to communicate with the child.
The parenting plan may be developed and agreed to by the parents, but it must be approved by the court. If the parents cannot agree or agreed to a plan that is not approved by the court, the court may refer the parties to mediation or the court may establish the parenting plan.
What must be considered when weighing the best interests of the child?
The best interests of the child is the primary consideration in developing and approving a parenting plan. There is no presumption in favor of either parent but there is a presumption of preference for parents over nonparents. Domestic violence is a disqualifying factor. Deployments of servicemember parents do not get considered.
Courts have a great deal of discretion in determining the best interests of the child, and the list of factors to consider includes:
- (1) The age and health of all parties
- (2) Placement of other children
- (3) The child’s preference (considered but not controlling)
- (4) Cooperativeness of the parents
- (5) Connection with family members other than the parents
- (6) Material circumstances
- (7) Any other factors necessary
Who can be ordered to pay child support and what guidelines does a court use in awarding child support? How long does a child support order last?
For the most part, child support orders are directed at non-custodial parents. The court uses statutory guidelines to determine the amount of child support awarded. The court totals both parents’ incomes, finds the total support amount in a statutory chart, and allocates it between the parents according to incomes. If the court deviates by more than 5% of this amount, it must enter written findings and justifications subject to appellate review. The justifications include:
- (1) Special needs of the child
- (2) Seasonal variations in income
- (3) The child’s age
- (4) Any existing parental agreements
- (5) Assets of the parents and child
- (6) The IRS dependency exemption
A child support order lasts until the child is emancipated or reaches the age of majority, which is either the age of 18 or if the child is still in school while 18 years old, support runs until the sooner of graduation or the child’s 19th birthday.
What is relocation and what is required for a parent to relocate a child? What happens if a parent relocates a child in violation of the law?
If the custodial parent wants to move at least 50 miles from their current residence, the parent must obtain permission from the court. The court will assume that the application to relocate is legitimate and made in good faith, but the other parent can prove otherwise (for example, demonstrating that the move is frivolous and being done out of spite). If the other parent objects to the move, the court will focus on the best interests of the child. When considering an application to relocate, the court may change the allocation of parenting time.
A party who relocates a child without complying with the legal requirements will be subjected to contempt and proceedings to compel the child’s return. The violation may be a factor in modifying the parenting plan and may justify ordering the relocating parent to pay any expenses and attorney’s fees that the other parent incurs objecting to the relocation.
What is required for alimony to be awarded and what are the different types of alimony?
To award alimony, the court must make a specific factual determination that one party has an actual need and the other party has the ability to pay. Alimony in Florida is statutory and includes four types:
- (1) Bridge-the-Gap Alimony: granted to assist party with legitimate short-term needs (may not be modified)
- (2) Rehabilitative Alimony: granted to assist party develop and establish a capacity for self-support (must be a specific and defined plan, may be modified)
- (3) Durational Alimony: granted to assist party with economic assistance for a set period of time which cannot exceed the length of the marriage (modifiable)
- (4) Permanent Alimony: granted to assist party who lacks the financial ability to meet his or her needs and necessities of life as they were established during the marriage (based on duration of the marriage)
Modification of 2, 3, or 4: upon a showing of “substantial change in circumstances.”
Alimony pendent lite may be available for the duration of dissolution proceedings.
What factors are considered in determining alimony? How is the length of marriage determined and how does it affect alimony?
Factors considered by the court in determining the type, duration, and amount of alimony include:
- (1) Age and physical and mental health of the parties
- (2) Assets owned by each party
- (3) Custody of children
- (4) The standard of living as it was during the marriage
- (5) The length of the marriage
- (6) Other factors necessary to do equity and justice.
Regarding length of the marriage, Florida has the following rebuttable presumptions. Length is measured from the date of marriage until the date of dissolution. The longer the term of marriage, the better the chance of obtaining permanent alimony. Permanent alimony may only be granted to short term marriages in exceptional circumstances.
- Short term = less than 7 years
- Moderate term = 7-17 years
- Long term = more than 17 years
What is required for a premarital agreement to be valid? What can they contain?
Premarital agreements (also called antenuptial or prenuptial agreements) are entered into by engaged people, and are generally valid. They fall within the Statute of Frauds and must be in writing and signed by both parties. The marriage itself is sufficient consideration. After the marriage, the agreement may be amended or revoked.
The agreements may be about almost anything, but may not adversely affect child support or authoritatively determine custody.
What are the requirements to get married in Florida?
Florida requires a license to marry. To obtain a license, people must be at least 18 years old but a 17-year-old can obtain consent from a legal guardian if the spouse isn’t more than 2 years older. Resident couples must wait 3 days between obtaining the license and having a marriage ceremony, unless they took a premarital preparation course.
Marriage in Florida also requires a ceremony, which requires a valid officiant (member of the clergy or authorized civil officer) and the exchanging of promises (or vows), of which no precise form of words is required.
Florida does not recognize common law marriage, unless it was validly obtained in a state which recognizes common law marriage.
What are the grounds for a void marriage and how does annulment differ from divorce?
Annulments are always based on grounds that predate the marriage and void the marriage; divorce is based on grounds that occurred during the marriage.
A void marriage is null. The grounds for a void marriage are not waivable. A void marriage cannot be ratified, but a void marriage can become voidable if the impediment is removed. Any interested party may attack a void marriage.
In Florida, only three grounds make a marriage completely void:
- (a) bigamy or polygamy
- (b) mental incapacity
- (c) consanguinity
What is a voidable marriage and what grounds make a marriage voidable?
A voidable marriage is valid unless one spouse seeks an annulment. The grounds for a voidable relationship can be waived. Only a spouse can attack a voidable marriage, and if that spouse ratifies the marriage by continuing the relationship, or if one spouse dies, the marriage cannot be invalidated. Grounds include:
- (a) duress
- (b) fraud (misrepresentation of religion or ability to procreate)
- (c) intoxication (lack of capacity)
- (d) lack of marital intent
- (e) nonage
- (f) incurable physical impotence
Which courts have subject matter jurisdiction over divorce proceedings and how is personal jurisdiction over spouses obtained? Where is venue proper?
Circuit courts have jurisdiction over dissolution proceedings. To establish subject matter jurisdiction, one of the spouses must be a Florida domiciliary and a permanent resident of Florida for at least six months before the filing of the complaint.
Personal jurisdiction over the other spouse is not needed for the divorce itself, but if the filing spouse wants any collateral remedies beyond simply a divorce decree (such as alimony or property division), then the court needs personal jurisdiction over the other spouse. Personal jurisdiction over an out-of-state respondent is based on traditional personal jurisdiction principles (minimum contacts, personal service, etc.).
Venue is proper in the county where either party resides or where the grounds arose.
