Family Law

Question 1

Under what circumstances may a party assert condonation as a defense to annulment of a marriage?

Answer 1

If (1) the spouse has knowledge of the misconduct or defect to the marriage; (2) the spouse forgives the misconduct or defect; and (3) the spouse resumes relations with the guilty spouse.

Question 2

If minor children or one spouse denies marriage irretrievably broken, what can the court do?

Answer 2

i) Continue the proceedings for a period not to exceed three months for the parties to attempt reconciliation;
ii) Order either party or both parties to undergo counseling; or
iii) Order the parties to take any actions that the court feels may be in the best interests of the parties and the minor children

Question 3

When does FLA allow a simplified divorce proceeding in county court?

Answer 3

When
(i) the parties agree that the marriage is irretrievably broken; (ii) there are no minor or dependent children of the marriage;
(iii) the wife is not currently pregnant; and
(iv) the parties have amicably divided all of their property, assets, and debts.

Question 4

What are the three circumstances that result in a void marriage?

Answer 4

(1) Prior existing marriage, (2) mental incapacity, and (3) incest

Question 5

A judgment terminating parental rights pending adoption is _________________ if the court finds that a person knowingly gave false information that prevented the parent from timely making known a desire to assume parental responsibilities toward the minor or from exercising her parental
rights.

When must this action be brought?

Answer 5

VOIDABLE
One year from the judgment terminating the parental rights

Question 6

In Florida, when a parent or other person who is entitled to access or time-sharing
with a child desires to relocate, that parent may be required to secure:

Answer 6

(i) the agreement of every other person entitled to access to or time-sharing with the child; or (ii) the court’s approval.

Question 7

Are the defenses of condonation, collusion, recrimination, and laches for divorce actions available in FLA?

Answer 7

NO. Florida has abolished these defenses. The only defense is that grounds are not met —> marriage is not irretriavebly broken (or no mental incapacity for at least prior to 3 years of filing)

Question 8

How many attesting witnesses must be present if a party signs a provision in a premarital agreement relating to whether or not to make a will or whether or not to give a devise?

Answer 8

two

Question 9

Does an annulment affect the legal status of a child born of a void or voidable marriage?

Answer 9

Yes, children born of a void or voidable marriage later annulled are not considered marital children, except for probate purposes.

Question 10

When is the increase in value of nonmarital property during the marriage marital property?

Answer 10

Active appreciation
(1) the increase is the result of the efforts of either spouse, or (2) the increase results from the contribution of marital funds or marital assets.

Question 11

What interests are not subject to distribution as marital property?

Answer 11

Professional licenses/degrees, future interests in property, and social security benefits.

Question 12

Subject Matter jurisdiction

When does a court has subject-matter jurisdiction to preside over custody hearings and to enter or modify custody or visitation orders?

Answer 12

When the state:
i) is the child’s home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or
ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Question 13

If a parent’s domestic violence resulted in a _________ conviction or higher, there is a rebuttable presumption that shared parental responsibility is detrimental to the child

Answer 13

first-degree misdemeanor

Question 14

What are the five requirements for a relocation agreement?

Answer 14

It must:
i) Be in writing;
ii) Signed by the parent and the other persons;
iii) Reflect consent to the relocation;
iv) Describe an access or time-sharing schedule for the non-relocating parent and any other person entitled to access or time-sharing; and
v) Describe, if necessary, any transportation arrangement related to time-sharing access.

Question 15

What parties must consent to the adoption of a minor child?

Answer 15

i) The mother of the minor;
ii) The father of the minor;
iii) The minor, if at least 12 years of age, unless the court in the best interests of the child dispenses with this consent;
iv) The person lawfully entitled to custody of the minor, if required by the court; and
v) The court, if the person having physical custody of the minor does not have authority to consent to the adoption.

Question 16

Florida has a rebuttable presumption that equal time-sharing of a minor child is

and this can be rebutted by

Answer 16

in the best interests of the child.

This presumption can only be rebutted by the proponent proving by a preponderance of the evidence that equal time-sharing is not in the minor’s best interests.

Question 17

To determine the proper alimony type and amount, the court considers the following economic factors, as well as any factors that promote equity and justice between the parties:

Answer 17

(i) standard of living during marriage; (ii) duration of the marriage; (iii) parties’ age, physical, mental, and emotional condition of each party; (iv) parties’ resources and income; (v) earning capacity and education level of the parties (including ability to obtain necessary skills or education); (vi) contribution to the
marriage, including homemaking, child care, and career building of the other party, and (vii) responsibilities for minor children.

Question 18

What is the rule in Florida regarding mediation during divorce proceedings?

Answer 18

Florida, by statute, permits parties, by either court order or agreement, to attend mediation in order to resolve their family conflicts. All proceedings, including the information contained in the mediator’s files, are confidential and inadmissible in court unless otherwise agreed to in writing by the parties.

Question 19

What are the rules regarding a prenuptial agreement?

Answer 19

A premarital agreement must be
* in writing and
* signed by both parties.

It is unenforceable if the party against whom enforcement is sought proves the agreement was
* (i) not made voluntarily,
* (ii) the product of fraud or duress, or
* (iii) unconscionable when executed and made without a fair and reasonable disclosure of the property or financial obligations of the other party.

A provision in a marital agreement that prevents spousal support is generally enforceable.
* What if it would make the spouse eligible for welfare?
* * An otherwise valid agreement regarding spousal support that results in a spouse becoming eligible for state support (i.e., welfare) may be set aside to the extent necessary to provide the spouse with sufficient support to avoid such eligibility.

Question 20

What are step parents rights to step children?

Answer 20

In Florida, stepparents have no legal rights in regards to minor children who are not biologically their own, absent adoption of the stepchild. Stepparents do not have rights to visitation and cannot obtain legal rights in child time-sharing.

Legal parents are presumptively entitled to parental responsibility of their children in cases against third parties, including stepparents, unless it can be established that the legal parent is unfit, that awarding parental responsibility to the legal parent would be detrimental to the child, or that the parent’s rights have been terminated.

Question 21

The date for identifying whether property, assets, and liabilities are marital or nonmarital is the earliest of the following dates:

Answer 21

(i) the date of the filing of the complaint for divorce,
(ii) the date that a valid property settlement agreement was executed,
(iii) the date provided in the parties’ valid property settlement agreement, or
(iv) the date provided by the court that has been determined to be fair and equitable under the circumstances.

Question 22

May an attorney receive attorney’s fees from another spouse during divorce proceedings?

Answer 22

Attorney’s fees may be awarded, either temporarily or permanently, to either party in a divorce action.

the spouse must demonstrate
* a lack of funds in comparison to the other party and must
* that the other spouse has the means to provide the funds.

The court will also consider other factors, including the length and history of litigation between the parties and whether the litigation was primarily to harass the other spouse.

Question 23

Are contingency fees allowed in family law?

Answer 23

A lawyer is prohibited from entering into an arrangement for, charging, or collecting a contingent fee in a domestic-relations matter when the payment or amount is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.

Question 24

List all the rules for for post-nuptial agreement

Answer 24

Postnuptial agreements are made between a married couple during the marriage.
Florida statutorily permits spouses to enter contracts with each other.
Marital agreements are subject to the principles of contract law, just as other legal agreements, but are not subject to the Statute of Frauds and therefore only need to be in writing if the subject matter falls within the Statute of Frauds

As with any other contract, consideration is required. A mutual exchange of promises or changes in property rights will provide sufficient consideration.

A postnuptial agreement may be entered into by couples who contemplate an ongoing, viable marriage or by couples who are planning for divorce.

an agreement may not adversely affect a child’s right to support or firmly determine responsibility and any provisions that do so are unenforceable.

Question 25

List the rules for parental responsibility and time sharing

Answer 25

In Florida, both parents have parental responsibility and time-sharing rights with their children.

After the parents of a child have separated or their marriage is dissolved, each minor child is to have frequent, continuing contact with both parents, and the parents are encouraged to share the rights, responsibilities, and joys of raising their children.

In Florida, the court must order a shared parental responsibility arrangement unless it is determined to be detrimental to the child’s best interests.

Furthermore, absent a statute or party agreement, there is a rebuttable presumption that equal time-sharing is in the child’s best interests. To rebut this presumption, a party must prove by a preponderance of the evidence that equal time-sharing is not in the child’s best interest.