Family law Flashcards
(45 cards)
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!!
