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Florida Essays and MCQs > Family Law > Flashcards

Family Law Flashcards

1
Q

Family Law Road Map (1-10)

A
  1. General Sources of Family Law
  2. Creation of Marriage
  3. Husbands and Wives
  4. Annulment
  5. Divorce
  6. Establishing Legal Parent-Child Relationships
  7. Termination of Parental Rights
  8. Parenting Plans
  9. Financial Consequences of Divorce
  10. Family Law Procedure
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2
Q

Constitutional Rights Under Family Law (List 8)

A
  1. Right to Marry
  2. Right to Procreate
  3. Right to engage in intimate relationships
  4. Right to use contraception
  5. Right to an Abortion (ehhhh…lol)
  6. Right to make family-based decisions
  7. Right to live with family members
  8. Right to a meaningful relationship with one’s child
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3
Q

Constitutional Right to Marry

A
  • Fundamental right under the U.S. Constitution
  • Subject to protection under both the Equal Protection and Due Process clauses.
  • States may impose reasonable regulations but CANNOT substantially interfere (Strict Scrutiny review)
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4
Q

Constitutional Right to Procreate

A

Fundamental right to have children.

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5
Q

Constitutional Right to Engage in Intimate Relations

A

Under the Due Process clause, states may not criminalize consensual sexual relationships between adults.

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6
Q

Constitutional Right to Engage in Intimate Relations

A

Under the Due Process clause, states may not criminalize consensual sexual relationships between adults.

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7
Q

Constitutional Right to Use Contraception

A

The right of adults - married or unmarried - to use contraception and otherwise make decisions whether to bear children, is protected under substantive due process.

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8
Q

Constitutional Right to Make Family-Based Decisions

A
  • Fit parents have the right to make decisions about the care, control, and upbringing of their children.
  • The state may not interfere with that right unless it is necessary to protect children from harm.
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9
Q

Right to Live With Family Members

A
  • States or localities cannot enact zoning ordinances or other regulations that ban individuals who are related by blood, marriage, or adoption from living together.
  • Government entities can, however, restrict unrelated individuals from living together, as long as the regulations are not arbitrary or capricious.
  • “Arbitrary or capricious”: Do not follow the law or logic.
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10
Q

Constitutional Right to Have a Meaningful Relationship with One’s Child

A
  • Biological parents have the right to pursue a meaningful parent-child relationship with their offspring.
  • Right is more absolute for mothers.
  • Fathers must have the opportunity to establish a relationship, but if they do not avail themselves of the opportunity to establish parent-child relationship, they may be held to forfeit their rights.
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11
Q

Creation of a Marriage

A
  • Controlled by state law.
  • Is a contract between two individuals; essentials of a contract, such as capacity and consent, are required.
  • A marriage is presumed to be valid unless demonstrated otherwise.
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12
Q

Void Marriages (List 3)

A

NOTE: Children born to void marriages are illegitimate.

NOTE: Void marriages are void from inception.

Bigamy:

  • It is illegal to be married to more than one person at the same time.
  • NOTE: Not subject to criminal sanctions if they reasonably believed spouse was dead, spouse abandoned them for 3 years and is believed to be dead, or otherwise reasonably believes he is legally eligible to remarry.

Incestuous Marriage:

  • Illegal to marry child or parent, brother or sister, aunt or uncle, nephew or niece.

Common Law Marriages:

  • Common law marriages entered into after January 1, 1968 are VOID.
  • NOTE: FL will recognize a common law marriage entered into in a state allowing it
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13
Q

Voidable Marriages (List 5)

A
  1. Mental or Physical Incapacity (No consent)
  2. One or both parties are underage (No consent)
  • Minors under 16 cannot get married, even with parental consent.
  • If one or both are 16 or older, parental consent of minor required. EXCEPTIONS: Both the minors parents are deceased or minor has been married before.
  • County court judge or circuit court clerk CANNOT issue a license to any person under 18 unless person is at least 17 and provides written consent from parent or guardian, AND the older party is no more than 2 years older.
  1. Duress
  2. Undue Influence
  3. Fraud
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14
Q

Prerequisites to Marry

A
  1. Must have capacity. Must be competent to give consent. Lower than contracts; must only understand what marriage is and what is expected of a married person.
  2. Must have consent.
  3. Must have intent.
  • Cannot enter into marriage as a joke or under a dare.
  • Marriages entered into for a limited purpose, such as to legitimatize a child, may be allowed.
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15
Q

Procedural Requirements of Marriage

A

In Florida, parties applying for a marriage license must:

  1. Provide a signed affidavit providing their social security numbers;
  2. Show that they have read or otherwise accessed the information contained in the state’s handbook of rights and responsibilities of parties to a marriage;
  3. Recite their true and correct ages in their affidavit, if they are under 18; AND
  4. Either complete a premarital preparedness course OR be subject to a three-day waiting period.
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16
Q

Ceremonial Marriages (Solemnization)

A
  • Ceremonial marriages must be solemnized by an authorized person (i.e. clergy, a judge, justices of the peace, notaries public, circuit court clerks, etc.)
  • After the ceremony during which parties give their consent to marry, the person solemnizing the marriage is required to complete and file the marriage license with the court.
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17
Q

Failure to Comply with Statutory Requirements

A
  • In the absence of fraud, most states will recognize the validity of a marriage that was intended to comply with statutory requirements but failed to do so.
  • Example: A couple who formally married in church but without a license and who acted as man and wife are deemed married.
  • Example: A marriage performed by a person not qualified to do so will often be recognized, particularly if at least one of the parties was unaware of his status.
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18
Q

Putative Marriage

A
  • = When one person has been living with another person in a genuine believe that the two are married, even though they are not.
  • Such a marriage may arise when there was some legal impediment to the marriage of which the innocent spouse (“Putative spouse”) was unaware of.
  • Putative spouse is entitled to compensation and benefits upon discovery of the defect, just as she would be in the case of a divorce in a legitimate marriage.
  • Ex. Partner is already married or their is an unknown blood relationship.
  • NOT A VALID MARRIAGE.
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19
Q

Gender Roles in Marriage

A

States may not assign marital rights and obligations on the basis of gender.

Ex. The Supreme Court struck down a statute under which only husbands and not wives could be ordered to pay alimony upon divorce.

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20
Q

Property Rights Under Marriage

A
  • FL law creates a tenancy by the entirety that applies only to married couples.
  • Presumed to have been created when spouses take title to real property at the same time.
  • Each spouse may acquire property and maintain title solely in their name during marriage.
  • Can create a tenancy by the entirety by simply conveying the deed to the marriage.
  • EXCEPTION: Such a conveyance is NOT valid if it is made for the purpose of defrauding any creditor or avoiding debt, or even if it has the effect of doing so.
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21
Q

Marital Privileges

A
  1. Marital privilege, both during and after the marriage, to refuse to disclose communications made during the marriage, and to prevent the other spouse from disclosing.
  2. May be claimed by the spouse, the spouse’s guardian, or the spouse’s conservatorship.
  3. May NOT be asserted:
  • In any legal proceeding between the spouses;
  • In a criminal proceeding where one spouse is charged with a crime against the other spouse or his or her children; OR
  • In a criminal proceeding where the defendant-spouse seeks to offer the communication in evidence.
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22
Q

Obligation to Support

A
  • A spouse who has the ability to contribute to the maintenance of the other spouse, and the support of his or her minor children, must do so.
  • If he or she does not, the spouse may sue for alimony and child support, as appropriate, even without filing for divorce. (CAN SEEK ENFORCEMENT OF SUPPORT IN FL EVEN BEFORE DIVORCE.)
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23
Q

Tort Rights

A
  • Florida has abolished interspousal immunity for battery, meaning that one spouse may sue the other for an intentional tort.
  • FL allows battery claims to be raised as a separate count in a divorce proceeding.
  • Ex. A wife was allowed to raise a claim for infliction of genital herpes in a divorce proceeding.
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24
Q

Crimes Between Spouses

A
  • FL will grant civil protection, including access to ex parte restraining orders, to individuals abused by spouses or cohabiting partners.
  • The FL legislature has stated that it intends to treat domestic violence as a crime, and not as a private “family matter.”
  • With the exception of people who have a child in common, family or household members claiming domestic violence MUST be living together, or must have lived together in the same dwelling in the past.
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25
Q

Annulment (Defined)

A
  • = a declaration that a prior marriage was void ab initio because of some defect that existed at the time it was created.
  • Effect = that the couple was NEVER MARRIED.
26
Q

Grounds for Annulment

A

VOID MARRIAGES:

  • Bigamy, incest, or common law marriage.
  • Since void, no actual need for annulment.

VOIDABLE MARRIAGE:

  • Remains valid until annulled.
  • Capacity, consent, fraud, duress, undue influence.
27
Q

Grounds for Annulment

A

VOID MARRIAGES:

  • Bigamy, incest, or common law marriage.
  • Since void, no actual need for annulment.
  • NOTE: Cannot inherit from spouse in a void marriage.

VOIDABLE MARRIAGE:

  • Remains valid until annulled.
  • Lack of capacity, lack of consent, underage, fraud, duress, undue influence.
  • Parties to a voidable marriage may ratify the marriage if they wish.
  • Ex. Continuing to cohabit after discovery of a material defect.
  • Once a marriage is ratified, it CANNOT be annulled.
28
Q

Effects of Annulment

A
  • Does NOT affect the legitimacy of children born to the couple during the marriage.
  • Does NOT disturb the presumption of paternity.
  • Has the same effect on property rights as divorce has.
29
Q

Defenses to Annulment

A

A party seeking to defeat annulment of a voidable marriage can invoke the usual equitable defenses to a legal action, including:

  • Ratification
  • Estoppel
  • Unclean hands (“party engaged in inequitable behavior including fraud, deceit, etc., thus barring recovery.”)
  • Laches (“unreasonable delay in making an assertion or claim”)
30
Q

Implications of Annulment

A
  • Although an annulment in principle declares that a marriage never occurred, courts still have the power to award alimony, child support, and the division of property.
  • Annulment has the same effect on property rights as divorce.
  • Annulment terminates tenancies by the entirety.
  • Annulment revokes prior wills.
  • Annulment eliminates intestate succession rights.
31
Q

Divorce Defined

A
  • = the legal dissolution of a valid marriage.
  • Two general types of divorces: At-fault and no-fault divorces. NOTE: FLORIDA HAS ABOLISHED FAULT-BASED DIVORCES.
  • Florida has enacted the mutually exclusive grounds for divorce:
  1. Irretrievable breakdown of the marriage; and
  2. Mental incapacity of one of the parties.
32
Q

Grounds for Divorce - Irretrievable Breakdown of the Marriage

A
  • Both parties do not need to agree to the breakdown of the marriage.
  • The irretrievable broken nature of the marriage can result from one party’s change of heart or commitment to the marriage.
  • The court MAY continue the action for up to three months to give the parties time to reconcile, IF one of the parties is contesting the divorce OR if there are minor children.
  • Court may also require the parties to seek counseling, but will not if one or both parties do not want to.
33
Q

Grounds for Divorce - Mental Incapacity

A
  • For a divorce based on mental incapacity, the incapacitation party must be adjudged incapacitated for at least THREE YEARS.
  • Court may appoint a guardian to protect the interests of the incapacitated spouse.
34
Q

Effect of Wrongdoing on Divorce Proceedings

A
  • Although Florida has abolished at-fault divorces, the parties’ wrongdoing may still have an impact on the outcome of the divorce.
  • Marital misconduct, including adultery, dissipation of assets, and spousal or child abuse, are factors the court will consider in determining alimony, equitable distribution, parental responsibilities, and awars of attorneys’ fees.
35
Q

Subject-Matter Jurisdiction in Divorce Proceedings

A
  • Only one of the spouses must reside in Florida to assert SMJ.
  • Must have been a resident for at least SIX MONTHS prior to initiating the divorce proceedings.
36
Q

Personal Jurisdiction in Divorce Proceedings

(MEMORIZE)

A
  • Florida does NOT need PJ over the non-filing spouse in order to grant a divorce or adjudicate issues related to child custody.
  • Florida DOES need PJ over non-filing spouse to adjudicate issues of property, spousal support, and child support.
  • REMEMBER: DIVORCE & CHILD CUSTODY - NO. EVERYTHING ELSE - YES!
  • If non-filing spouse resides in Florida, then the court has PJ.
  • If non-filing spouse does NOT reside in Florida, the court must look to Florida’s long arm statute to establish PJ.
    • PJ will be asserted if the parties maintained a marital home in Florida OR if the other spouse resided in Florida prior to the filing of the action.
37
Q

Access to Courts - Divorce Proceedings

A
  • States must provide indigents access to divorce.
  • States now maintain a procedure that entitles indigent divorce petitioners a waiver of court fees and costs (upon proof of indigency).
38
Q

Child Legitimacy

A
  • Generally, a child is legitimate if his or her parents were married at time of conception or birth.
    • Ex. A child is legitimate if parents were married at conception, but divorced when the child was born.
39
Q

Artificial Insemination

A

A child conceived via AI or in vitro is irrebuttably presumed to be the child of the spouses, provided that both have consented in writing.

40
Q

Non-Marital Children

A
  • A non-marital child benefits from all the rights of his or her mother.
  • A non-marital child may also benefit from a complete set of rights with respect to the biological father.
    • Florida requires that an unmarried biological father establish his rights by executing a notarized affidavit acknowledging paternity.
  • In order for the father to assert his own parental rights (such as contact and access to child), his status MUST be established by a court.
41
Q

Disestablishing Paternity

A

After a judgment of paternity has been entered, or paternity was established through marriage, a father has the right to file a petition of disestablish paternity under the following circumstances:

  1. Paternity test establishes F is not the father;
  2. F did not adopt the child;
  3. M did not have artificial insemination while married;
  4. M did not interfere with the biological F’s ability to assert his parental rights; AND
  5. Child is younger than 18 when F files his petition.

Court can DENY THE PETITION to disestablish paternity if the father, while knowing he wasn’t the biological father performed any of the following acts:

  1. Married M and assumed the parental obligations and duty to pay child support;
  2. Acknowledged paternity in a sworn statement;
  3. Consented to be named on the birth certificate;
  4. Voluntarily consented in writing to support the child; OR
  5. Received written notice from any state agency to submit to a paternity test and disregarded it.
42
Q

Adoption (Definition and Process)

A

= the process by which someone other than the biological parent of a child becomes his legal parent.

PROCEDURES:

  1. Home Study: A favorable home study is required for all pre-adoptive parents prior to the placement of a child to determine suitability of the intended adoptive parents.
  2. Report of Placement: Adoption entity must report any intended placement with any person who is not a relative or stepparent if the adoption entity participates in the intended placement. Must be made to the court before placement is made. NOTE: If minor is placed in the prospective parent’s home before the parental rights of the minor’s parents are terminated, the placement is an at-risk placement.
  3. Termination of Parental Rights Pending Adoption: A child is eligible for adoption upon the death of both of his biological parents. If one or both are alive, the parental rights must be terminated before adoption. NOTE: Termination can be voluntary or involuntary.
  • If child is more than 6 months old when parental consent is given, the consent is subject to a 3-day revocation period.
  • Court may void a prior consent due to fraud or duress.
  1. Court Hearing to Finalize Adoption: Only adoptive parents and minor child must be present.
43
Q

Certificate of Diligent Search

A
  • Proceedings for termination of parental rights or for adoption require the petitioner to submit an application for a “Certificate of Diligent Search” of the Florida Putative Father Registry.
  • In response to the application for a search, the Office of Vital Statistics will issue a certificate certifying either (1) the identity and contact info of the biological father; OR (2) that a diligent search was made and no matching registrant was found.
  • If identity found, actual notice must be given to the father.
44
Q

Adoptive Parents

A
  1. A married couple may adopt a person jointly;
  2. A married person may adopt a child w/o the spouse joining in the adoption if (1) the spouse is the parent of the child and consents to the adoption; or (2) the court finds good cause for the spouse to not join in the petition or consent to the adoption, or the adoption is the best interest of the child.
  3. An unmarried couple may adopt.
45
Q

Voluntary Termination of Parental Rights

A
  1. Parent can consent. Court will make sure that such consent was truly voluntary and allow three day revocability period before granting it.
  2. Birth mother cannot consent any sooner that 48 hours after birth or after being notified in writing that she is fit to be released from hospital, whichever is earlier.
  3. A minor parent has same power as an adult to consent.
46
Q

Involuntary Termination of Parental Rights

A

A court will terminate parental rights if:

  1. Parent voluntarily executes a surrender, giving up the child to the Dept. of Children;
  2. Court find that the parent has abandoned, abused, neglected or endangered the child;
  3. Parent is incarcerated for a period of time that constitutes virtual desertion; OR
  4. Parent is a career criminal, convicted murderer, or sexual predator.
47
Q

“Best Interests of the Child” Standard

(MEMORIZE)

A
  • The overriding principle regarding every decision the court makes for a child is the “best interests of the child” standard.
  • Court states that it is in the best interests of the child:
  1. To ensure that each minor child has frequent and continuing contact with both parents; and
  2. To encourage parents to share the rights, responsibilities, and joys of child rearing.
48
Q

Parental Responsibility

A
  • Deals with the decision making aspects of the child’s life.
  • Presumption that shared parental responsibility is in the best interests of the child.
  • Two types of parental responsibility - Ultimate and Parallel.
  • Court may grant one party ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between parents based on the best interests of the child.
  • If the court divides them up, that is parallel parenting.
49
Q

Time Sharing of a Child - Parenting Plans

A
  • Determine they physical aspects of a child’s life, such as where they are going to spend their time.
  • In assessing the factors to create the parenting plan, the court MUST balance the best interests of the child with the parents constitutionally protected rights.
  • Modifiable via court order.

REQUIREMENTS:

  1. MUST be approved by the court.
  2. MUST describe in adequate detail how parents will share and be responsible for
  • the daily tasks associated with the child’s upbringing;
  • the time-sharing schedule arrangements
  • Any and all forms of health care, school-related matters, or other activities, AND
  • Methods of technology that the parents will use to communicate with the child.
50
Q

Relocation

A

= a change in location of the principal residence of a parent from is principal residence at the time of the last court ordered time sharing.

  • The change of location must be at least 50 miles from the last place of residence, and for at least 60 consecutive days. (Does NOT include temporary relocations or vacations.)
  • If an agreement has not been reached, any parent who is entitled to time sharing must notify the other parent he is proposing to relocate.
  • In ruling on a proposed relocation, court will consider the following factors:
    • the nature, quality, extent of involvement and duration of the child’s relationship with the relocating parent;
    • child’s age;
    • the feasibility to preserving the relationship between the non-relocating parent and the child through substitute arrangements (logistics, financial circumstances, likelihood of the parent complying with the substitute arrangements,
    • Child’s preference;
    • Reasons of parent relocating;
    • Career and other opportunities available to the objecting parent;
    • History of substance abuse or domestic violence, etc.
51
Q

Equitable Distribution

(MEMORIZE)

A
  • Under equitable distribution, FL presumes that property will be divided equally, but allows for the marital estate to be divided unequally as long as the result is equitable.
  • Disregards title when distributing marital assets.
  • The court MUST take the following FOUR STEPS in determining an equitable distribution.
  1. Identification of all marital and non-marital assets;
  2. Classification of assets and liabilities as either marital or non-marital so that non-marital property can be set aside to the ownership party prior to dividing the marital estate.
  3. Valuation of assets and liabilities; AND
  4. Distribution of assets and liabilities.
52
Q

Equitable Distribution - Is Unequal Distribution Warranted?

A
  1. Contribution to the marriage by each spouse, (include provision of care and education of children, and services as a homemaker);
  2. Economic circumstances of each party;
  3. Duration of the marriage;
  4. Any interruption of personal careers or educational opportunities;
  5. Contribution of one spouse to the other’s career or education;
  6. Desirability of retaining any asset;
  7. Desirability to retain the marital home as a residence for any dependent child;
  8. Any intentional waste, dissipation, depletion or destruction of marital assets during the marriage; and
  9. Other factors necessary to do equity and justice between the parties.
53
Q

Alimony (Definition + List 4 Types)

(MEMORIZE)

A

The general concept behind alimony is to allow the dependent spouse to become self-sufficient.

FOUR TYPES OF ALIMONY

  1. Bridge the Gap Alimony: Granted to assist spouse with short-term needs.
  2. Rehabilitative Alimony: Granted to Assist spouse in developing and establishing a capacity to be self-sufficient.
  3. Durational Alimony: Granted to assist spouse with economic assistance for a duration of time.
  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.
54
Q

How does the court determine alimony amount?

A

The court will consider the following factors when deciding alimony amount:

  1. Standard of living during the marriage;
  2. Duration of marriage;
  3. Age and physical and emotional condition of each party;
  4. Financial resources of each party;
  5. Responsibility of each party for minor children;
  6. Time necessary for either arty to obtain training/education;
  7. Contributions to marriage;
  8. Sources of income available to either party;
  9. Etc.
55
Q

Modification of Alimony Requirements

A

The following factors must be met in order to obtain a alimony modification.

The change must be:

  1. Permanent;
  2. Significant;
  3. Material;
  4. Involuntary; AND
  5. Something that could not have been contemplated at the time of final judgment.
56
Q

Termination of Alimony

A
  • Obligation to pay alimony ends upon the death of either party.
  • Alimony payments may end upon the remarriage of the recipient partner or i the event of a supportive relationship with another person, depending on the type of alimony rewarded.
  • The obligation is NOT terminated due to bankruptcy, but the circumstances may justify a modification.
57
Q

Child Support

A
  • Both parents have an obligation to support their children regardless of if married or not.
  • Courts can award child support if unmarried, married, married but seeking divorce, or married and not seeking divorce.
  • Florida follows the income shares model, under which child support is calculated so that the child will benefit from the same percentage of parental income as before divorce.
  • FL law requires that every child support order contain a provision for child health care coverage.
  • Court may deviate from the above guidelines by 5% without justifying the calculation.
58
Q

Temporary Support

A

= support that one parent pays while the divorce is still pending and before a permanent child support order has been entered.

  • Court has significant discretion in awarding temp support.
59
Q

Prenuptial Agreements

A
  • Must be in writing and signed by the parties.
  • Becomes effective when the parties get married.

Parties may contract to:

  1. The right to buy, sell, use, transfer, etc. property;
  2. The disposition of property upon separation, divorce, death, or the occurrence/non-occurrence of an event;
  3. The establishment, modification, waiver or elimination of spousal support;
  4. Ownership rights in life insurance upon death; and
  5. The choice of law governing the construction of the agreement.

NOTE: CANNOT contract away the right to child support in a prenup.

60
Q

Petition for Dissolution of Marriage (Procedure)

A
  1. Spouse will file a Petition for Dissolution of Marriage, alleging the existence of a valid marriage, grounds for subject matter jurisdiction, and grounds for the divorce.
  2. Marital misconduct must be specially pled.
  3. Parenting plans, equitable distribution, alimony, child support and attorneys feeds may all be resolved by a temporary order for the duration of the proceedings.

Florida Essays and MCQs (13 decks)

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