Family Law Flashcards
6 Areas?
- Alimony
- Child Support
- Equitable Distribution
- Prenup or Postnup
- Parental Responsibility (Custody) - Best Interest of the Child.
- Time Sharing (Visitation) - Best Interest of the Child.
Mandatory Disclosure
Florida Law requires parties involved in any family law proceeding for an initial or supplemental request for temporary or permanent financial relief (child support, alimony, equitable distribution) to disclose all assets.
Prenuptial Agreement
needs consideration, and marriage is the consideration. A contract settling property placement. Governed by the Statute of Frauds. Must be in Writing. Subject to Will formalities.
- Must be entered into voluntarily
- Must be fair and Full disclosure must be made.
Voluntary
Courts look at…
- Time Place Circumstances
- Opportunities to seek Independent Counsel
- Statements made during presentation of the agreement.
* No Shotgun weddings involving duress.
Postnuptial agreement
*anything can be discussed in prenups and postnuptial for property and marital support. CAN NOT authoritatively determine child custody
Marriage
It is a fundamental right.
- License
- Solemnization –the ceremony
- Needs Capacity
a. 18 years, or 16 with parental consent or court approve - No Common Law Marriage in Florida.
Child Support
Generally, both parents have the duty to provide support for their child.
The Courts follow statutory Child Support guidelines of adding both parents’ income and factoring in the number of children they share. *Income will be imputed for either party who is voluntarily underemployed or unemployed.
Modifications may be made to child support or alimony only after a showing of a “substantial change in circumstances”
- Best Interest of the Child is the Standard.
- Domestic Violence cases- presumption of sole parental responsibility for abused spouse.
Void/Voidable Marriages
Void- if there is some impediment to prevent them from being legally married. (Same sex marriage) Any party can seek annulment.
Voidable- One spouse can seek annulment, unless they ratify marriage by acts or the other party dies.
Codonation . Its is continuing cohabitation of a voidable marriage. Its a Defense to Voidable marriages.
Recrimination (Unclean Hands)- if neither party comes to court with clean hands, a court may not grant relief for either party.
Ratification- Conduct by spouse with cause of action in a voidable marriage that displays marriage exists.
No Fault Divorce
Florida is a No Fault State that does not require grounds for divorce. A person must show
- 3 years of spouse being insane or
- Marriage has been Irretrievably broken for 3 years.
*No minor child- one doesn’t have do deny that marriage is irretrievably broken.
Annulment- the process that making a marriage invalid as if it never existed. (grounds include lack of consent, capacity, no intent to be bound, purpose of obtaining citizenship, bigamy, incest)
Dissolution looks at grounds that arise AFTER marriage and Annulment looks to grounds AT TIME OF ENTRY.
Steps of Equitable Distribution
- Identification
- Classification (Marital and Non-Marital Property)
- Valuation (Plan the Valuation Date)
- Distribution
Marital Property/ Marital Assets//Liabilities
Include asset or liability acquired during the marriage.
- those acquired or incurred by either or both spouses.
- enhancement, appreciation in, value of NonMarital Assets as a result of EITHER spouse during marriage.
- interspousal gifts during marriage.
- all vested/nonvested benefits or funds accrued during marriage.
Pension interest accrued during marriage. (most times when the payer dies, interest dies)
- If I have a separate property that I exchange for another piece of separate property worth thousands more, remains separate
- Get a house as a tenancy by entirety. Creditors can’t attach
8 Factors for Equitable Distribution
- CONTRIBUTION TO THE MARRIAGE; including the care and education of children and services as homemaker.
- ECONOMIC CIRCUMSTANCES of the parties
- DURATION of the marriage
- INTERRUPTION OF PERSONAL CAREERS or education opportunities of either spouse
- . CONTRIBUTION OF ONE SPOUSE TO THE PERSONAL CAREER or educational opportunity of the other
- DESIRABILITY OF RETAINING ANY ASSET
- CONTRIBUTION to enhancement or acquisition of MARITAL AND NONMARITAL ASSETS
- DESIRABILITY OF RETAINING THE MARITAL HOME
Alimony
one spouse’s need ,combined with the ability to pay. The concept is designed to keep both spouses self sufficient. May be awarded to EITHER SPOUSE. Adultery may be considered.
The right to receive alimony may be EXPRESSLY waived for additional consideration. Not given if a marriage is annulled.
There are 5 Types of alimony. It is taxable and tax deductible.
5 Types of Alimony
- Alimony Pendente Lite (Suit Money) - Temporary alimony is available during the pendency of litigation for dissolution of marriage. It can’t not be waived.
- Bridge-the-Gap Alimony- designed to assist with legit short term needs to help transition from marriage to single. Terminates upon death of remarriage.
- Rehabilitative Alimony- 1. redevelopment of previous skills or credentials 2. acquisition of education, training, or work experience necessary to develop skills.
- Durational Alimony- awarded when permanent alimony is inappropriate. Its purpose is to provide assistance for a period following the marriage.
- Permanent Alimony- awarded to provide necessities of life. Using giving after a long marriage (alimony can’t last longer than marriage.) A long marriage is 17 years or more. A short one is less than 7 years.
10 Factors For Alimony
- STANDARD OF LIVING
- DURATION
- AGE AND PHYSICAL AND EMOTIONAL CONDITION
- FINANCIAL RESOURCES
- EARNING CAPACITY, EMPLOYABILITY, TIME NEEDED TO OBTAIN EDUCATION OR TRAINING.
- CONTRIBUTION to the marriage
- RESPONSIBILITY regarding the children
- TAX TREATMENT and consequences of the award
- ALL SOURCES OF INCOME
- EQUITY factors.
