Family Law

Question 1

Abandonment / Safe-Haven

Answer 1

Under the “safe-haven” law, a parent who leaves an infant who is seven days old or younger at a manned fire station or an emergency medical center or with an employee at a hospital is deemed to have consented to the termination of her parental rights. (voluntary termination)

In Florida, a parent of a newborn infant left at a safe haven may reclaim his or her newborn infant up until the court enters a judgment terminating his or her parental rights. The parents have 30 days from entry of the judgment to appeal the order.

A child is deemed abandoned when the parent or legal custodian of the child, while being able, makes no provision for the child’s support and fails to establish or maintain a substantial and positive relationship with the child.

Question 2

Alimony

Answer 2

Alimony is the obligation of one party to provide the other with financial support due to an existing or past marital relationship between the parties.

Question 3

Pendente lite

Answer 3

Temporary money given to one spouse during the divorce proceeding. This puts the lesser-earning spouse on equal ground in court.

Question 4

Bridge-the-gap Alimony

Answer 4

Short term alimony to help the transition from being married to being single. Cannot exceed 2 years and cannot be modified.

Question 5

Rehabilitative Alimony

Answer 5

For a set period of time to allow a party to be self-supporting (i.e. school, training, work-experience).

Question 6

Durational Alimony

Answer 6

For a set period of time and is generally awarded for short or moderate-term marriages when permanent alimony would not be appropriate. The length cannot be greater than the length of the marriage.

Question 7

Permanent Alimony

Answer 7

For the remainder of the dependent spouse’s life and is generally awarded for long-term marriages and for a spouse who cannot support themselves. (terminates upon death, remarriage, or supportive relationship).

Question 8

Alimony Factors

Answer 8

In Florida, alimony is based on the spouses need and the other spouse’s ability to pay. To determine the proper alimony type and amount the court will consider the following factors: the standard of living during the marriage, the duration of the marriage, the age and condition of each party, contribution to the marriage, minor children responsibilities, sources of income, any other factor necessary for equity and justice.

Question 9

Alimony Modification

Answer 9

In Florida, a party can petition the court to modify alimony is they can establish a substantial change in circumstance, the change was not contemplated when alimony was awarded, and the change is material and permanent in nature.

Question 10

Attorney’s Fees

Answer 10

Attorneys fees may be awarded temporarily or permanently to either spouse in a dissolution or modification action. The purpose is to allow both spouses equal opportunity to acquire competent counsel. A spouse must show the need and the ability of the other spouse to pay. The court will also consider the duration and scope of the litigation.

Question 11

Child Adoption

Answer 11

In Florida, adults and children can be legally adopted. Adoption creates a legal relationship where a person is deemed the child of the adoptive parents for all purposes, including inheritance and fundamental right to raise the child.

A married couple, a single person, and same-sex couples may adopt. Determination for adoption will be based on fitness of the person to be a parent and ability to provide a safe environment.

Adoption agencies will conduct a background check, the child is placed with the potential adoptive parent for a minimum of 90 days (adoptive placement), then the state (counselor) will confirm the adoption is safe, and the adopting parent will submit a petition to make the adoption final.

Biological parents must consent to adoption or parental rights must be legally terminated. If the biological parents are dead the child’s biological family will have first preference for adoption.

If a child is over 12 years old, they must consent themselves. However, if a child over 12 refuses a court can override the refusal if adoption is in the best interest of the child.

Question 12

Child Relocation

Answer 12

In Florida, a parent or guardian seeking relocation needs consent or may petition the court for approval when relocating over 50 miles. The relocating parent has the burden to show, by a preponderance of the evidence, that relocation is in the best interest of the child. The burden then shifts to the non-relocating parent to show that it is not in the best interest of the child.

Question 13

Relocation Factors

Answer 13

In determining if the relocation is in the best interest of the child the court will consider the following factors: both parents’ involvement with the child, the age and needs of the child, financial circumstances of both parents, the child’s preference, enhancement of the child’s quality of life, history of domestic violence and substance abuse, any other factor in the best interest of the child.

Question 14

Uniform Child Custody Jurisdiction and Enforcement Act UCCJEA

Answer 14

The purpose of the UCCJEA is to prevent jurisdictional disputes among courts in different states on matters of child custody and visitation.

A court will have subject matter jurisdiction if the state is the child’s home state or is where the child has resided for the last 6 months. In Florida, the circuit court will have jurisdiction and will continue to have jurisdiction over any child custody matters as it is in the best interest of the child.

Question 15

Child Support

Answer 15

In Florida, both parents have the duty to provide child support to their children. Generally, child support obligations end when the child reaches 18 years of age, unless the child is physically or mentally dependent or is between 18 and 19 years old and in high school studying to graduate. The right to receive child support belongs to the child and cannot be waived.

Florida follows the income-shared model, which means the child should receive the same proportion of income as if the parents continued to live together. The court uses the total net income (gross income – expenses) to determine the amount of child support. Upon written findings to justify it, the court may deviate from the formula but not by more than 5% in either direction.

Retroactive child support is capped at 24 months from the date the petition is filed.

A child-support order may be modified if there is a substantial change in the circumstances or financial ability of either parent. Substantial change in circumstances means there is at least a 15% of $50 difference, whichever is greater or fails to exercise time-sharing when they have at least 20% time-share.

Question 16

Dissolution of Marriage Jurisdiction

Answer 16

A court will have subject matter jurisdiction over an action for dissolution of marriage if one spouse has been a resident of Florida for 6 months prior to filing the petition.

Venue is proper in the county where the parties last resided as husband or wife or the county where they live at the time of filing,

Question 17

Standard for Divorce

Answer 17

Divorce is a legal dissolution of marriage. Florida is a no-fault divorce state, so there are only two grounds for divorce: the marriage is irretrievably broken, and incapacity.

If one of the parties is contesting the divorce or there are minor children who would be adversely affected the court may continue the proceedings for up to 3 months to give the parties a chance to reconcile, the court may also order the parties to seek counseling (both parties must agree).

In order to file for divorce on the grounds of incapacity the incapacitated party must be adjudged incapacitated for at least 3 years preceding the complaint.

Question 18

Marital vs. Non-Marital Assets

Answer 18

A marital asset is property acquired individually or jointly during the marriage, any benefits that accrued during the marriage, interspousal gifts, and any enhancement or appreciation of any non-marital asset as a result of effort or contribution of either spouse.

A non-marital asset is property acquired prior to the marriage and kept separate.

Question 19

Equitable Distribution

Answer 19

Florida is an equitable distribution state. The presumption for equitable distribution is a 50/50 split of marital assets. Marital assets are divided in a fair and equitable manner.

If the court makes written findings justifying unequal distribution the court may deviate from the 50/50 split based on the following factors: contribution during the marriage, the duration of the marriage, the economic circumstances of the spouses, interruption of career or education opportunities, any other factors necessary for equity and justice.

Question 20

Duration of Marrage

Answer 20

Short-term marriage is less than 7 years, a moderate-term marriage 7-17 years, a long-term marriage is 17 years or greater.

Question 21

Homestead

Answer 21

In Florida, a husband and wife are presumed to take property as tenants by the entirety.

In Florida, a person may claim homestead protection if they are a natural person, a Florida resident who uses the property as permanent residence, and they establish ownership and the size and contiguity requirement (½ acres of contiguous land located inside a municipality or 160 acres of contiguous land outside a municipality).

Homestead protection will protect the homeowner from a forced sale by any creditor if the homestead is established (recorded) prior to any judgment recorded against the property. However, there is an exception for the failure to pay mortgage, property taxes, or enforcement of a mechanics lien.

Question 22

Parental Responsibility

Answer 22

In Florida, the standard for parental responsibility is the best interest of the child and the presumption is for shared (50/50) parental responsibility. Shared parental responsibility is a relationship in which both parents retain full parental rights and legal decisions are made jointly.

The court may implement sole parental responsibility if it is determined that shared parental responsibility would be detrimental to the child.

Question 23

Parenting Plan / Timesharing

Answer 23

The parties must submit a parenting plan to the court that describes how the parents share daily tasks, time-sharing schedule, responsibility for health care and school. The court then must approve the parenting plan if it is in the best interest of the child.

Question 24

Factors for best interest of the child

Answer 24

In determining the best interest of the child, the court will consider the following factors: (1) close & continuing parent-child relationship; (2) division of parental responsibility; (3) stable environment; (4) geographic viability; (5) moral fitness, mental and physical health of each parent; (8) consistent routine; (9) domestic violence & child abuse; and (10) protecting the child from ongoing litigation.

Question 25

Parental Responsibility Modification

Answer 25

In Florida, a party can petition the court to modify parental responsibility or parenting plan by showing a substantial, material, and unanticipated change in circumstance, and the modification is in the best interest of the child.

Question 26

Uniform Deployed Parents Custody & Visitation Act

Answer 26

The Uniform Deployed Parents Custody & Visitation Act (“UDPCVA”) was enacted in Florida in 2018 and applies specifically to parents who are also military service members.

Under the UDPCVA, the deploying parent may designate a person to exercise temporary caretaking authority on the parent’s behalf during deployment. The designation must be limited to an adult family member or an adult whom the children have a close and substantial relationship.

Question 27

Paternity

Answer 27

An action to establish paternity may be brought by an expectant mother, any man believing he is the father, or any child.

There is a rebuttable presumption that a child born to a married couple is a marital child. Must rebutted with clear and convincing evidence and the marriage must have been a valid marriage.

9 Months Rule: A child born within nine months of the divorce or the death of the husband, is considered a marital child.

If the reputed father of a child marries the mother after the birth of the child, then the child is deemed to be the child of the marriage

Question 28

Termination of Child Support

Answer 28

When a man is determined not to be the biological father of a child, he may petition for the disestablishment of paternity and for termination of his child-support obligation.

The petitioner must submit an affidavit that includes new evidence that shows why he is not the father of the child.

By motion, or on its own, the court may order genetic testing to determine paternity. Florida presumes paternity of the test results reveal a probability of 95% or greater.

Question 29

Premarital Agreement

Answer 29

In Florida, a premarital agreement is a contract made by prospective spouses in contemplation of marriage and is generally valid. Premarital agreements fall within the statute of frauds and must be in writing and signed by both parties. The marriage itself is sufficient consideration and the agreement is effective upon marriage.

A premarital agreement cannot affect the right to child support and cannot definitely dictate parental responsibilities upon separation or divorce.

A premarital agreement must be entered into voluntarily and cannot be the product of fraud, duress, coercion, or overreaching, or unconscionable when executed.

Unconscionable when executed means a party was not given a fair and reasonable disclosure of property, did not voluntarily waive the right to disclosure of property, and did not have adequate knowledge of the property.

Unenforceable provisions are severed and attorney’s fees provisions are enforceable.

Question 30

Postnuptial Agreement

Answer 30

Postnuptial agreements are made between a married couple during the marriage and does not have to be in writing to comply with the statue of frauds unless it involves the transfer of land. Mutual exchange of promises is sufficient consideration.

Separation agreements are made between a married couple who are planning for divorce.

Question 31

Termination of Parental Rights

Answer 31

At a voluntary termination proceeding, the biological parents can give up their rights by consenting to the adoption.

The involuntary termination of parental rights is initiated by the state and typically occurs as a part of a child abuse, neglect, or dependency case after the state has intervened and unsuccessfully attempted to rectify the situation

Question 32

Termination of Parental Rights: Notice

Answer 32

The petition to terminate parental rights, together with a summons, must be served on any person whose consent to the adoption is required, unless the person waived service.

When the father’s identity is unknown, the court is required first ask the mother, if unknown, the adoption agency is required to conduct a diligent search. An unmarried biological father is deemed to have notice of the termination based on the sexual relationship with the mother and has a duty to protect his own rights.

Grandparents have a right to notice of a petition for termination of parental rights pending adoption only if the child has been living with the grandparent for 6 months of the 24-month period preceding the filing of the petition.

Question 33

Termination of Parental Rights: Appeal

Answer 33

Any child, parent, guardian ad litem of any child, or any other party to the proceeding who is affected by an order of the court may appeal the order terminating parental rights within 30 days.

Question 34

Guardian Ad Litem

Answer 34

When the court determines that an allegation of abuse, abandonment, or neglect is well-founded, the court must appoint guardian ad litem for the child.

The court may appoint guardian ad litem when it is in the best interest of the child to act as the child’s next friend or advocate. The court may also appoint an attorney as legal counsel for the child.