Family law Flashcards
What are prenuptial and postnuptial agreements?
What can/cant they modify)
Contracts before/after marriage designed to set out marriage (and dissolution) terms.
They can modify ANYTHING but CANNOT:
* waive child support
* waive temporary alimony (pendente lite)
Prenup
Requirements
- Must be in writing
- Signed by both parties
- There must be consideration (getting married)
Prenup
Modification/revocation?
Can be modified/revoked by a subsequent written agreement signed by both parties (no consideration needed)
Prenup
Voluntariness requirement
MUST be voluntary, courts will look at
- time and place of presentment
- Party’s sufficient time to consider terms
- Opportunity to consult atty. (no need to actually do it, just that they could have)
This is non-exhaustive (there could be more factors)
Prenup
Other defenses
Other contract defenses such as fraud, duress, coercion apply.
Prenup
Unconsionable agreements
If prenup is held to be unconscionable = not enforceable
Unconsionable prenup agreement
Exception
Unconsionable UNLESS the party seeking enforcement can prove that there was a fair and reasonable disclosure of property/financil obligations.
Post-nuptials
Requirements
K standard formation + in writing and signed by both parties (no consideration needed) BUT also needs either:
1. full and fair disclosure of financial obligation b/w parties
2. OR completion of discovery - done from dissolution of marriage (and prevents reaching divorce settlement agreemnt until discovery has been completed or 1)
What cannot be done in a post-nup?
For a marital settlement agreement
+ define “agreement”
If a marital settlement agreement is reached and signed by the judge = final –> NO modification (of property settlement / equitable distribution)
Settlement “agreement” = either parties agreed OR court decided for them
Dissolution of marriage
Def
Divorce
Dissolution of marriage
Jurisdiction
Circuit courts have jurisdiction over these (exceptionally, county courts may too) IF at least 1 of the parties is a FL resident (SMJ)
Residency requirements
Dissolution of marriage
Residency is established by:
1. party living in FL for 6 months
2. with actual intent to make FL their permanent home
Even if you “temporarily” reside elsewhere, you can keep your residency
Dissolution of marriage
Jurisdiction - PJ
Even if there is no PJ over parties, court can enter a dissolution of marriage BUT it cannot adjudicate any financial matters (i.e. alimony, etc.)
No fault divorce
FL courts look at whether the marriage was “irretrievably broken” (if so, courts must grant dissolution)
Courts do not consider whether one party was at fault for causing the divorce in the dissolution itself (but yes in alimony under certain circumstances)
No fault divorce
Pleadings
You prove the “irretrievably broken” marriage in the pleadings and D can either admit or deny the claim.
No fault divorce
answer (deny)
If D denies, “irretrievably broken” becomes a fact at issue and the judge can:
1. continute (pause) the case for up to 3 months to “reconcile”
2. order counseling (while case continues)
3. do whatever he/she considers in the best interest of the parties (and possible minor children)
Equitable distribution
Def and presumption
Process by which court divides marital assets and liabilites.
There is a presumption of equal distribution
UNLESS factors show that an unequal distribution is warranted…
Equal distribution
Marital assets/liabilities
Courts can only distribute (have jurisdiction over) marital assets. Courts will identify the marital assets when the petition for dissolution of marriage is filed.
Equitable distribution
ID marital asses
These can be:
1. all property acquired by either spouse during marriage
2. interspousal gifts during the marriage
2. properties owned in TBE
3. personal properties titled jointly
4. retirement plans accumulated/added to during marriage
5. enhancements in value of non-marital assets resulting from effort of either party during the marriage
Equal distribution
Non-marital assets/liabilities
- any property acquired prior to marriage AND/OR acquired in exchange for such property (i.e. selling property - $$ - non marital - even whatever you buy with that $$)
- assets acquired separately by non-interspousal gifts (bequested, inherited, devised) and/or exchanged for other property (you sold a ring your sister gave you and bought xyz)
- income derived from non-marital assets UNLESS converted for marital purposes
- any assets excluded in pre-post nups
Passive v. active appreciation of non-marital assets
Passive: appreciation of assets from market forces alone – non-marital
Active: marital assests (time/money) used to increase the value of a non-marital asset = the added values is a marital asset (i.e. renovating a home)
Note: $$ contributions to a 401K –> active appreciation
Date of valuing marital assets
Whatever the judge considers to be fair and equitable
Intends to prevent strategic divorce (before stocks “blow-up”)
Equitable distribution
Factors considered
- economic circumstances of the parties
- contribution of one party to the care and education of the children
- duration of the marriage
- education
Catch all: whatever the judge considers to be relevant!
Alimony
Def
Payment from one spouse to another based on one’s needs and the other’s ability to pay
REMEMBER TO USE THIS DEF!!
Alimony
adultery
Courts ONLY consider adultery in alimony $$ IF the adultery depleted marital assets
Alimony
Modification
ALL (except bridge-the-gap) alimonies CAN be modified based on a substantial change of circumstances of one or both parties
Alimony
Marriage considerations
Short term: «_space;7 years (less than)
Medium: 7-17 years
Long: 17 years ++
Alimony
Types
- Temporary/pendente lite
- Bridge-the-gap
- Rehabilitative
- Durational
- Permanent
Temporary or Pendente lite
Alimony type
Awarded during the “pendency” of the proceedings
*CANNOT be waived *(in pre&post - nups)
Bridge-the-gap
Alimony types
Awarded when there is a legitimate need to help spouse transition from married to single life.
Limited to 2 years
Bridge-the-gap
Termination/Modification
CANNOT be modified
Terminates by death of either party OR remarriage of the recipient
Rehabilitative
Alimony type
Awarded for the party that becomes self-sustainable after dissolution and needs new skills/trainings
Party must have a rehabilitative plan!
Rehabilitative alimony
Termination/modification
Can be terminated by non-compliance OR completion
Can be modified
Durational alimony
Def
Alimony for a defined #years (cannot exceed the years of marriage)
Mainly used in short & medium term marriages
But can also be used for long-term ones if there is no need for permanent alimony
Permanent alimony
Def
Used for long-term marriages when one of the parties has a minimum financial capacity to be self-supportive
Permanent alimony
Termination
Can be terminated by proving x-spouse has a supportive relationship (partners but not married) OR remarriage
What should you do if the facts tell you that there are kids?
Talk about (1) parenting plan and (2) child support
Parenting plan
Def
Determines how x-spouses parent their child(ren)
* This includes time-sharing & parental responsibility
MUST be established when there are minor children and be based in BIC
Time sharing plan
Parenting plan
Determines how much time each parent gets w/children based on BIC
Time sharing plan
Considerations for BIC
Considers:
1. parents’ ability to spend time and care for child(ren)
2. moral fitness of the parents
3. parent who encourages close relationship w/other parent
4. reasonable preference of the child (if of age)
+ whatever additional factors court considers in BIC
Parental responsibility
presumption and exception
Presumtion of shared parental responsibility UNLESS not in BIC and court can order sole parental responsibility
Responsibility = decision-makiing education, religion, medical care
Child support
Def
Parents have a DUTY to support minor children and the parent that does not live w/child has to pay
$$ amount established by the child support guidelines worksheet
Child support
Expiration
You must pay child support until kid(s) 18 years OR legally emancipated
Exceptions to child support expiration
- Child is 18-19 and still in high school – pay until graduation
- Child is physically/mentally dependent – paying until no longer dependent
PR issue
Contingency fee agreements ARE NOT valid in the establishing of divorce OR financial/property support.
BUT are valid in the collecting (enforcement proceedings)
You can enter into an a free agreement contingent on enforcing the collection of property distribution, alimony/child support b/c the amounts are alreayd set)
