family law Flashcards
family law: types/rules of law used
family law rules and rules of civil procedure
family law mandatory disclosure
requirement of financial documents for both parties and a continuing duty to disclose supplemental information
long form disclosures
if more than $50k in question; 10 additional interrogatories than with standard interrogatories
marital agreements in general
law of K is involved; generally valid if 1-voluntary (appropriate time and place to review, opportunity to seek counsel, and statements made during presentation); 2-fair and just or after full and fair disclosure/discovery.
premarital agreements
statute of frauds applies-must be in writing; marriage is sufficient consideration; courts will strictly scrutinize for good faith and lack of consideration; full financial disclosure is not required; can’t leave spouse dependant on the state w/o extra support and can’t mention kids or parental responsibility; can address attorney fees
post-nuptial agreements
do not fall under SOF, but subject matter may such as property; can waive alimony right; cannot waive child support or determine who will have parental responsibility; if agreement does not fairly provide for contesting spouse, must have full and fair financial disclosure before signing posnup; mutual promises are consideration; can waive right to elective share; may address parental responsibility and child support, but cannot adversely affect the kid
marriage rights
right to marry is a fundamental constitutional right-any restrictions must be the least restrictive means and serve a compelling state interest-any regulation can’t burden too much;
common law marriage
not recognized after 1968; can recognize pursuant to full faith and credit if valid in another state; parties must have had mental capacity to K; must hold each other out as married-present tense marriage
statutory marriage requirements
voluntary consent; must have K mental capacity; if under 16, needs court permission; if 16-18, okay if pregnant, have a baby, parents or court okay it;
valid marriage requirements
license; opposite sex; 3-day waiting period if no prep course was completed; solemnization-ceremony by judge, authorized public official, or religious institution; certify license w/i 10 days
proxy marriages
not recognized in FL
termination of marriage in general
circuit court jurisdiction;
annulment
treats parties as if no marriage existed; invalid marriage; no alimony except during the action-but can recover damages; common law based-not statutory; impediment (impotency, sham) had to exist at the time of the marriage; a child of an annulled marriage is not considered to be a child of that marriage
void marriage
Void: like it never happened; does not require judicial order; two basis: 1-prior existing marriage; 2-lack of mental capacity; any party may seek to annul, no act can ratify. Voidable: requires judicial decree; only a spouse can seek to annul: 1-incest (w/i a degree, half-blood); 2-age; 3-impotence (naturally and incurably impotence & other party did not know before marriage); 4-intoxication (incapable to K); 5-fraud, mis-rep, duress, coercion (must be present at time); 6-lack of intent (meant as joke)
property of an anullment
courts try to place parties in same positions as if never married; alimony is never available except for pendent lite during the action
defenses to annulllment action
recrimination (unclean hands)- both parties are guilty of same thing; laches-doesn’t seek in a timely manner; and ratification-conduct based after marriage; condonation-continued cohabitation
divorce in general
residency requirement of 6 months to file in FL; full faith and credit given to a divorce in another state; no legal separation in FL; FL is a “no fault” divorce state
divorce grounds
“no fault” state-eliminates fault. two types: 1-irretrievably broken (court must make the finding, needs testimony of only 1 spouse, even if curable; if spouse contest, court can continue the matter for 3 moths, order counseling, or order that divorce is in best interest of kids); 2-incapacity (1 of the parties was mentally incompetent).
divorce defenses
denial of the grounds (good luck with that)
simplified divorce
no kids, no argument over assets, must still file financial affidavit disclosure, goes to county court instead if circuit court, no legal counsel, wife not pregnant, must still draft settlement agreement
equitable distribution in general
not always 50/50 division of property, but division must be equal, unless unequality is justified
separation agreement
merges into final judgment of divorce; legal separations are not recognized in FL
property agreement
settles property and money; must be intended by both parties to be final; cannot be modified once executed
validity of marriage agreements
1-writing; 2-signed; 3- fair; 4- reasonable; 5-full disclosure
marital assets and liabilities
acquired by spouse during marriage or from a source connected to marriage. 1-assets acquired by either or both spouses during marriage, other than through gift, bequest, or descent; 2-enhancements of, or appreciation in, value of non-marital assets as a result of the efforts of the other spouse during the marriage or from contribution to or expenditure of marital funds; 3-interspousal gifts during the marriage; 4-all benefits accrued during marriage in vested or non-vested retirement plans, pension plans, profit-sharing plans, etc.; 5-earnings and wages; 6-marital residence-considering dependent kids
domestic violence
FL has a statute that grants civil remedies; protects all people residing together as a family; movant must have standing. injunctions-act committed or a reasonable belief that an act will be committed; must be in affidavit under oath; D must be personally served; must be a hearing; temporary injunction will take place immediately upon the affidavit-good for 15 days; after hearing, the general injunction will be for a fixed time.
non-marital assets and liabilities
1-assets acquired by either spouse prior to marriage; 2-assets acquired by non-interspousal gifts, bequest, descent, or devise; 3-income derived from non-marital assets during the marriage unless used or relied on as a marital asset; 4-anything agreed to by the parties to be non-marital; 5-any liability incurred by forgery of the unauthorized signature of one spouse signing the name of the other
factors to determine equitable distribution
1-each spouse’s contribution to the marriage, including care and education of the children and homemaker services; 2-economic circumstances; 3-duration of marriage; 4-each spouse’s career and educational sacrifices and contributions to the other spouse’s career/education; 5-desirability of retaining any assets free from claim, including marital home for minor kids; 6-misconduct of spouse in depleting marital assets w/i 2 years of filing petition for dissolution; 7-contributions of marital/non-marital property
alimony in general
available to either spouse absent express waiver or valid agreement; can’t waive your right to pendent lite/temporary alimony during the action; cannot be forgiven in bankruptcy; cannot be affected by voluntary under-or unemployment
alimony: court considerations
1-need; 2-ability to pay; considered separately after equitable distribution
alimony pendente lite
(suit money); support during pending litigation in every proceeding for dissolution; cannot be waived
bridge-the-gap alimony
assists with legitimate identifiable short-term needs while making the transition from being married to being single; length may not exceed 2 years; award terminates upon the death of either party or remarriage of recipient; may not be modified in amount or duration
rehabilitative alimony
specific and defined plan included in order that assists party in becoming self-supporting (obtaining education or training necessary); award may be modified or terminated if there has been a substantial change in circumstances, noncompliance w/ rehabilitative plan, or completion of the rehabilitative plan; remarriage does not necessarily stop rehabilitative alimony
durational alimony
provides economic assistance for a set period of time following a marriage of short or moderate duration when permanent alimony is inappropriate; award may be modified or terminated if there has been a substantial change in circumstances; length of award may not be modified except under exceptional circumstances and may not exceed the length of the marriage
permanent alimony
provides for the needs and necessities of a spouse who lacks the financial ability to be self-sustaining; it may be awarded following a marriage of moderate or long duration; if the award is appropriate upon the completion of certain factors, or short duration if there are exceptional circumstances; award may be modified or terminated upon substantial change in circumstances or the existence of a supportive relationship or the death of either party or the remarriage of the recipient
tort claim awards as marital assets
consortium and lost wages are marital property, pain and suffering for the spouse is not marital property
attorneys fees in divorce
court may award atty fees to one spouse to make her on equal footing to the other spouse; court looks at how long litigation will take, harassment
length of marriage
short-less than 7 years; moderate-7 to 17 years; long-more than 17 years
factors to determine amount of alimony
1-adultery, but only if it caused a financial impact; 2-standard of living; 3-duration of marriage; 4-age, emotional, and physical condition of both parties; 5-financial resources and ALL sources of income, including investments; 6-earning capacities, educational levels, vocational skills, and employability of the parties, and where applicable the amount of time needed to obtain education or training; 7-contribution to marriage, including homemaking, childcare, education, and career building of the other party; 8-responsibilities each will have with regard to any minor children; 9-tax treatment and consequences to each of any alimony award; 10-any factors that will foster equity; the use of the major home can also be a factor in alimony
modification of alimony
awards of alimony are modifiable by courts upon a substantial change in circumstances; cannot go back later and ask for modification if you didn’t get alimony in the first place
parental responsibilities in general
refers to custody; purpose is to promote frequent and continuing contact with both parents if in the “best interests of the child.”
parental responsibilities: factors of “best interest”
1-capacity and disposition to encourage a close and continuing parent-child relationship with other parent; 2-division of parental responsibilities and tasks, including delegation to 3rd parties; 3-geographic viability of the parenting plan; 4-length of time child has resided in a stable environment and desirability of maintaining continuity; 5-moral fitness of the parents, including maintaining environment free from substance abuse; 6-mental and physical health of parents; 7-reasonable preference of the child, if deemed sufficient intelligence, understanding, and experience; 8-capacity of each parent to be informed of minors’ life and provide a consistent routine; 9-evidence of domestic violence, child abuse, abandonment, or neglect, or false information of the same; 10-capacity of each parent to protect the child from the ongoing litigation; 11-suitable educational facilities; 12-opportunities for development of child; 13-natural ties and affection of child (friends and family location)
palimony
alimony for unmarried persons; not recognized in FL
shared parental responsibility
requires parents to confer on all major decisions. COURTS MUST ORDER UNLESS DETRIMENTAL TO CHILD or best interest standard applies. Court can award sole parental responsibility or divide parental responsibilities
domestic violence in divorce w/ kids
rebuttable presumption of detriment to child if convicted of 1st degree misdemeanor-if unrebutted, court has discretion to limit shared parental responsibility of convicted parent, but NOT support
uniform child custody jurisdiction and enforcement act (UCCJEA)
home state rule: a court competent to decide child custody matters has jurisdiction to make child custody determination if the state is the child’s HOME STATE or was the child’s home state w/i the past 6 months, and the child is absent from the state, but a parent or person acting as parent still lives in the state. exception: court has jurisdiction to enter/modify a order if no other state has jurisdiction and: 1-the child and at least 1 parent have significant connection w/ state AND 2-substantial evidence is available in state regarding child’s care, protection, training, and relationships. Exclusive continuing jurisdiction: the initial court that made the initial order has exclusive jurisdiction until 1-the child or parents leave the state and 2-child no longer has a significant connection to the state
parenting plans in general
governs relationship between the parents with respect to minor children, including time-sharing, daily tasks, healthcare, school, activities, and communication
time-sharing in parenting plans
time table specifying visitation right of each parent, including overnights and holidays. Grandparents do NOT have visitation rights.
keeping children safe act
visitation rights permitted only after hearing, where rebuttable presumption of detriment to a child or other caregiver when: 1-court finds probable cause that parent or caregiver has sexually abused a child; 2-parent or guardian pled guilty or no contest to charges relating to sex crimes, child abuse, removing a minor from a state, or concealing a minor contrary to court order; or 3-parent or guardian is a sexual predator. Clear and convincing evidence that is relevant is allowed, including hearsay.
parenting plans: relocation
if primary parent wants to relocate 50 miles from current residence, she must either obtain written consent or serve a petition to relocate, specifying where, when, why, and how time-sharing will be effected, on anyone entitled to time-sharing. Any objection must be filed and served w/i 20 days. If a written job offer, must be attached to notice.
best interest of child factors for relocation
1-child’s relationship (involvement & duration) w/ parent, siblings, & significant persons; 2-child’s age, needs, and impact move will have on the child; 3-child’s preference; 4-enhancements to the quality of life from the proposed relocation; 5-reasons for seeking or opposing relocation and whether each is acting in good faith; 6-career opportunities of the objecting person after relocation; 7-history of substance abuse or domestic violence; 8- any other factors that foster equity
parenting plans: modification
MUST SHOW: 1-substantial, material, and unanticipated change of circumstances; AND 2-in the best interest of the children; exception regarding military service
child support in general
child support is the RIGHT OF THE CHILD, and parents may NOT contract away the child’s right
child support: determined by:
1-statute-Fl Child Support Guidelines Worksheet (must include provision for health insurance and medical expenses) AND 2-requisite NEED and ABILITY to pay. Look at combined net income to determine $; will impute income on voluntary un- or underemployment
child support: departure from statutory guidleines
greater than %5 departure from guidelines MUST be in writing and justified; if obligor parents has at least 20% of overnights, court MUST decrease their child support payments. Other departures are for: extraordinary medical or education expenses, seasonal variations in income apply, a child’s age warrants deviation, special shared parental arrangements exist, the total assets of the parents and child justify a lower amount, or there is an IRS dependency exception. Subsequent child is not a reason to lower, but can be a reason to raise.
child support: duration
generally cease when child turns 18, unless child is physically or mentally dependent, or a dependent who is between 18-19 and in high school studying to graduate
child support: enforcement
central depository/state disbursement unit; income deduction orders; writ of garnishment; suspension of professional or driver license; notice of 15 days and a hearing before action; jurisdiction is circuit court or DCF. Can be arrested on contempt charges and cannot bail/bond out- support paid in cash only to get out of jail-no right to an attorney if civil fines only, but can have atty if getting jail time. A federal offense to not pay for more than a year, or if you owe more than $5k to child in another state
court approved parenting course
REQUIRED before final judgment of dissolution will be entered
paternity
presumption in favor of finding a child to be a marital child unless overcome by clear and convincing evidence. Marital child-born or conceived during marriage, even if marriage was voidable; non-marital child-born out of wedlock. Determination: 1-written acknowledgement or 2-judicial proceeding usually w/ DNA results (95%). Defense: statute of limitations is 4 yrs and begins to run once child reaches majority (18).
family law: adoption in general
ANY person can be adopted. Do not need to be married to adopt. Ban on gay adoption was ruled unconstitutional under rational basis test. Primary place of residence must be FL to adopt in FL.
family law: adoption consent
consent required from: 1-mother; 2-father; 3-adoptee over age 12; 4-any person lawfully entitled to custody; and, 5-the court, if the person having physical custody does not have authority to consent to the adoption. Unmarried biological fathers must preserve their right to notice and consent to adoption by filing a claim of paternity w/ FL Putative Father Registry. Mother can’t consent until 48 hours after birth, and can withdraw consent up to 3 days. If parental rights have been terminated, consent is given by adoption agency; petition for adoption is 60 days after termination of parental rights.
minor children and court testimony
must get permission of court to obtain testimony or to have a minor child appear
Ks to marry
not valid
spousal and child support w/o divorce
can get without petitioning for dvorce
