Family law

Question 1

What are prenuptial and postnuptial agreements?

What can/cant they modify)

Answer 1

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)

Question 2

Prenup

Requirements

Answer 2

1. Must be in writing
2. Signed by both parties
3. There must be consideration (getting married)

Question 3

Prenup

Modification/revocation?

Answer 3

Can be modified/revoked by a subsequent written agreement signed by both parties (no consideration needed)

Question 4

Prenup

Voluntariness requirement

Answer 4

MUST be voluntary, courts will look at

1. time and place of presentment
2. Party’s sufficient time to consider terms
3. Opportunity to consult atty. (no need to actually do it, just that they could have)

This is non-exhaustive (there could be more factors)

Question 5

Prenup

Other defenses

Answer 5

Other contract defenses such as fraud, duress, coercion apply.

Question 6

Prenup

Unconsionable agreements

Answer 6

If prenup is held to be unconscionable = not enforceable

Question 7

Unconsionable prenup agreement

Exception

Answer 7

Unconsionable UNLESS the party seeking enforcement can prove that there was a fair and reasonable disclosure of property/financil obligations.

Question 8

Post-nuptials

Requirements

Answer 8

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)

Question 9

What cannot be done in a post-nup?

For a marital settlement agreement
+ define “agreement”

Answer 9

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

Question 10

Dissolution of marriage

Def

Answer 10

Divorce

Question 11

Dissolution of marriage

Jurisdiction

Answer 11

Circuit courts have jurisdiction over these (exceptionally, county courts may too) IF at least 1 of the parties is a FL resident (SMJ)

Question 12

Residency requirements

Dissolution of marriage

Answer 12

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

Question 13

Dissolution of marriage

Jurisdiction - PJ

Answer 13

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.)

Question 14

No fault divorce

Answer 14

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)

Question 15

No fault divorce

Pleadings

Answer 15

You prove the “irretrievably broken” marriage in the pleadings and D can either admit or deny the claim.

Question 16

No fault divorce

answer (deny)

Answer 16

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)

Question 17

Equitable distribution

Def and presumption

Answer 17

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…

Question 18

Equal distribution

Marital assets/liabilities

Answer 18

Courts can only distribute (have jurisdiction over) marital assets. Courts will identify the marital assets when the petition for dissolution of marriage is filed.

Question 19

Equitable distribution

ID marital asses

Answer 19

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

Question 20

Equal distribution

Non-marital assets/liabilities

Answer 20

1. any property acquired prior to marriage AND/OR acquired in exchange for such property (i.e. selling property - $$ - non marital - even whatever you buy with that $$)
2. 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)
3. income derived from non-marital assets UNLESS converted for marital purposes
4. any assets excluded in pre-post nups

Question 21

Passive v. active appreciation of non-marital assets

Answer 21

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

Question 22

Date of valuing marital assets

Answer 22

Whatever the judge considers to be fair and equitable

Intends to prevent strategic divorce (before stocks “blow-up”)

Question 23

Equitable distribution

Factors considered

Answer 23

1. economic circumstances of the parties
2. contribution of one party to the care and education of the children
3. duration of the marriage
4. education

Catch all: whatever the judge considers to be relevant!

Question 24

Alimony

Def

Answer 24

Payment from one spouse to another based on one’s needs and the other’s ability to pay

REMEMBER TO USE THIS DEF!!

Question 25

Alimony

adultery

Answer 25

Courts ONLY consider adultery in alimony $$ IF the adultery depleted marital assets

Question 26

Alimony

Modification

Answer 26

ALL (except bridge-the-gap) alimonies CAN be modified based on a substantial change of circumstances of one or both parties

Question 27

Alimony

Marriage considerations

Answer 27

Short term: &laquo_space;7 years (less than)
Medium: 7-17 years
Long: 17 years ++

Question 28

Alimony

Types

Answer 28

1. Temporary/pendente lite
2. Bridge-the-gap
3. Rehabilitative
4. Durational
5. Permanent

Question 29

Temporary or Pendente lite

Alimony type

Answer 29

Awarded during the “pendency” of the proceedings

*CANNOT be waived *(in pre&post - nups)

Question 30

Bridge-the-gap

Alimony types

Answer 30

Awarded when there is a legitimate need to help spouse transition from married to single life.

Limited to 2 years

Question 31

Bridge-the-gap

Termination/Modification

Answer 31

CANNOT be modified
Terminates by death of either party OR remarriage of the recipient

Question 32

Rehabilitative

Alimony type

Answer 32

Awarded for the party that becomes self-sustainable after dissolution and needs new skills/trainings

Party must have a rehabilitative plan!

Question 33

Rehabilitative alimony

Termination/modification

Answer 33

Can be terminated by non-compliance OR completion

Can be modified

Question 34

Durational alimony

Def

Answer 34

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

Question 35

Permanent alimony

Def

Answer 35

Used for long-term marriages when one of the parties has a minimum financial capacity to be self-supportive

Question 36

Permanent alimony

Termination

Answer 36

Can be terminated by proving x-spouse has a supportive relationship (partners but not married) OR remarriage

Question 37

What should you do if the facts tell you that there are kids?

Answer 37

Talk about (1) parenting plan and (2) child support

Question 38

Parenting plan

Def

Answer 38

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

Question 39

Time sharing plan

Parenting plan

Answer 39

Determines how much time each parent gets w/children based on BIC

Question 40

Time sharing plan

Considerations for BIC

Answer 40

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

Question 41

Parental responsibility

presumption and exception

Answer 41

Presumtion of shared parental responsibility UNLESS not in BIC and court can order sole parental responsibility

Responsibility = decision-makiing education, religion, medical care

Question 42

Child support

Def

Answer 42

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

Question 43

Child support

Expiration

Answer 43

You must pay child support until kid(s) 18 years OR legally emancipated

Question 44

Exceptions to child support expiration

Answer 44

1. Child is 18-19 and still in high school – pay until graduation
2. Child is physically/mentally dependent – paying until no longer dependent

Question 45

PR issue

Answer 45

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)