Family Law Flashcards
(135 cards)
1
Q
Checklist for every FL family law question:
A
D divorce/dissolution/annulments/dissolution agreements E equitable distribution, A alimony, T time sharing, S support for children
2
Q
Right to marry is…
A
Fundamental and subject to protection under both the Equal Protection Clause and the Due Process Clause.
States may impose reasonable regulations on marriage, but laws that directly and substantially interfere with the right to marry are reviewed with heightened scrutiny.
3
Q
The right to procreate is…
A
A fundamental right
4
Q
Right to Engage in intimate Relationships
A
Under the Due Process Clause, states may not criminalize consensual sexual relationships between adults
5
Q
Right to Use Contraception
A
The Supreme Court has long protected the right of adults—whether married or single—to use contraception and otherwise make decisions about whether to bear or beget children. The constitution protects these rights as a matter of “substantive” due process.
6
Q
Right to have an Abortion
A
States may not impose an undue burden on a woman’s right to terminate a pregnancy
7
Q
Right to make Family-Based Decisions
A
Fit parents have the right to make decisions about the care, control, and upbringing of their children. The state may not interfere with that right unless necessary to protect children from harm.
8
Q
Right to live with Family members
A
States or localities cannot enact zoning ordinances or other regulations that ban individuals who are related by blood, marriage, or adoption from living together.
Governmental entities can, however, restrict unrelated individuals from living together, as long as the restrictions are not arbitrary or capricious
9
Q
Right to have a meaningful Relationship with One’s Child
A
Biological parents have the right to pursue a meaningful parent-child relationship with their offspring.
For mothers, this right is more or less absolute.
Fathers must have the opportunity to establish a meaningful parent-child relationship, but if they do not avail themselves of the opportunity to establish parent-child ties, they may be held to forfeit their rights.
10
Q
Civil marriage, defined and controlled by state law, is
A
a contract between two individuals eligible to marry.
11
Q
For a marriage to be valid,
A
all the essentials of a contract—such as capacity and consent—must be present
12
Q
Florida law provides that marriage is legal only between
A
one man and one woman
13
Q
A marriage is presumed to be valid unless
A
demonstrated otherwise.
14
Q
If a person has been married more than once,
A
the most recent marriage is presumed to be valid.
15
Q
There are four circumstances that make a marriage void in Florida.
A
Bigamy Incestuous Marriages Marriages between: Lineal Consanguinity, Brother or Sister, Uncle or Aunt, and Nephew or Niece. Same Sex Marriage Domestic Partnerships Civil Unions Common Law Marriages after Jan 1 1968
16
Q
Putative Marriage exists where:
A
One person has been living with another person of the opposite sex with the genuine belief that the two are married.
Not a valid marriage and not enforceable as one.
However: because the innocent party had a good faith or genuine belief that they were actually married, she may be entitled to compensation or benefits upon the dissolution of the marriage
17
Q
In Florida, the following attributes apply to void marriages:
A
(1) the marriage is a nullity from inception;
(2) there is an impediment creating a total bar to marriage;
(3) the issue may be raised in any court proceeding;
(4) anyone may raise the issue;
(5) the issue may be raised at any time;
(6) the children born to a void marriage are illegitimate ; and
(7) consummation has no effect on the marriage’s (in)validity.
18
Q
A marriage is voidable in Florida based on:
A
mental or physical incapacity (i.e., impotence), underage, duress, undue influence, or fraud.
19
Q
In order to contract marriage,
A
both parties must be competent to give consent
20
Q
In order for a marriage to be valid,
A
both parties must give their consent and must have the intent to marry.
21
Q
Legal Formalities for Marriage in Florida
A
i) The Marriage License:
(1) Apply in person together
(2) No blood test, but need: signed notarized affidavit with their ages and social security numbers
(3) The parties need to tell the clerk that they have read the rights and responsibilities of parties to a marriage and:
(a) they wait three days OR
(b) They go to a pre-marital preparedness course and then they can get married immediately
(4) The license will expire in 60 days.
22
Q
People authorized to marry others:
A
(1) Judge
(2) Former Judge
(3) Ordained Ministers
(4) Circuit Court Clerks
(5) Notary
**The person who performs the ceremony signs the application.
23
Q
If there is a procedural defect (but no fraud), the couple is…
A
deemed married.
24
Q
In general, the validity of a marriage is determined by the law of…
A
the locus of its celebration.
25
Florida's Stance on Same-Sex Marriage
Florida is among more than 40 states that have enacted statutes or constitutional amendments that not only prohibit samesex marriage, but also expressly deny recognition to same-sex marriages celebrated elsewhere.
26
What is tenancy by the entirety?
A special sort of joint tenancy, tenancy by the entirety allows for the surviving spouse to take ownership of the property without passage through probate when one spouse dies.
Tenancy by the entirety is presumed to have been created when a husband and wife both take title to real property at the same time.
27
If one party to a marriage already owns real estate, he can create a tenancy by the entirety under which both spouses hold title simply by...
conveying a deed that states the intention to create a tenancy by the entirety
28
Each spouse may acquire and maintain sole title to property, whether or not the property was brought to the marriage or
acquired during the marriage unless...
It is transferred into some form of joint ownership.
29
A married woman has rights to separate real and personal property, including the rights to do any of the following with such property without the consent of her husband:
1) take charge, manage, and control it;
2) enter contracts with respect to it;
3) sue, and be sued, over it;
4) sell, convey, or transfer it;
5) mortgage, use, or pledge it; and
6) make, execute, and deliver instruments of any character.
30
Wives in Florida are responsible for paying their own debts...
incurred prior to the marriage
31
A husband still has the duty to...
support and maintain his wife and children.
32
What is the Principle of Community Property?
The general principle is that property earned during the marriage by either spouse is under the joint control and ownership of both, and must be allocated by the courts in accordance with that principle, regardless of which spouse caused the property to come to the marriage.
33
In Florida, a husband or wife who has the ability to contribute to the maintenance of the spouse, and the support of his or her minor children, must do so. If he or she does not...
The spouse may sue for alimony and child support, as appropriate, even without filing for divorce.
34
Florida state law protects confidential communications that occur while a couple is married
A spouse has the privilege, both during and after the marriage to:
(a) refuse to disclose such communication; and
| (b) prevent another from disclosing communication.
35
The marital privilege may be claimed by:
(a) the spouse himself or herself;
(b) the spouse’s guardian; or
(c) the spouse’s conservator.
36
The marital privilege may not be asserted:
In any legal proceeding that one spouse has brought against the other;
in any criminal proceeding where one spouse is charged with a crime against the other spouse or the couple’s children; or
in a criminal proceeding where the defendant spouse seeks to offer the communication in evidence.
37
Can Spouses sue each other for Battery?
Florida has abolished interspousal immunity for battery, meaning that one spouse may sue another for this intentional tort
38
A spouse whose spouse was injured by a tortfeasor could sue for...
Loss of consortium, which is the companionship and sexual aspects of a marriage relationship.
39
How does Florida law protect abused spouses?
Florida will grant civil protection, including access to ex parte restraining orders, to individuals abused by spouses or cohabiting partners.
40
Annulment is
a declaration that a prior marriage was void ab initio because of some defect that existed at the time it was created. In effect, a decree of annulment means that the couple was never married.
41
Void marriages are
those in which the state has such a strong interest in enforcing the prohibition that the parties’ desires are considered irrelevant.
A void marriage is of no legal effect. A party may request a judicial determination of invalidity by means of an annulment action in order to clarify the rights of the parties.
42
Examples of void marriages:
(1) bigamy;
(2) incestuous marriage;
(3) same-sex couple; or
(4) common law marriage.
43
If a marriage is merely voidable, as opposed to void...
it remains valid until annulled.
44
An impediment to a voidable marriage may be...
cured.
45
In Florida, the grounds for an annulment generally arise from ...
legal or mental incapacity,
physical incapacities or infirmities,
lack of consent, or consent through force,
duress,
fraud, or
concealment
46
The parties to a voidable marriage may “ratify” the marriage if they wish, meaning...
that they may decide to validate the marriage rather than avoid its obligations.
47
Effects of Annulment:
Annulment does not affect the legitimacy of children born to the couple during the marriage.
Annulment does not disturb the presumption of paternity.
An annulment has the same effect on property rights as divorce has.
It terminates joint tenancies, revokes prior wills in favor of the spouse, and eliminates intestate succession rights.
After the annulment of a voidable marriage, the parties become tenants in common of any properties that were held by the entirety
48
A party seeking to defeat annulment of a voidable marriage can invoke the usual equitable defenses to a legal action, including:
a. ratification;
b. estoppel;
c. unclean hands; and
d. laches.
49
Although an annulment in principle declares that the marriage has never taken place, courts still have the power to declare the financial rights and obligations of the parties. The court may award:
a. alimony;
b. child support; and
c. division of property;
50
Can a spouse in a voidable marriage inherit through interstate succession?
A voidable marriage is considered to be a valid marriage until and unless an annulment is obtained. Therefore, the surviving spouse would be entitled to inherit through intestate succession.
51
Divorce is
the legal dissolution of a valid marriage.
52
There are two types of divorces:
fault-based divorces, based on one party’s failure to fulfill the terms of the marital contract, and
no-fault divorces, based on one party’s or both parties’ desire to leave the marriage.
Florida abolished fault based divorces.
53
After abolishing fault-based divorce, Florida established two grounds for divorce:
a. irretrievable breakdown of the marriage; or
| b. mental incapacity of one of the parties.
54
For a divorce based on mental incapacity, the incapacitated party must be...
adjudged incapacitated for at least three years according to certain statutory procedures that specifically describe how service must be made on the incapacitated person, among other things
55
Factors that courts consider in divorces:
Marital misconduct, including adultery, dissipation of assets, and spousal or child abuse, are factors the court will consider in determining alimony, equitable distribution of marital assets, parental responsibilities, and awards of attorneys’ fees
56
Subject Matter Jurisdiction in a Divorce...
In Florida, only one of the two spouses must be a resident of Florida (t least six months) for Florida to assert subject-matter jurisdiction and grant a divorce.
57
Florida does not need personal jurisdiction over the non-filing spouse to...
(Divorce)
grant a divorce or adjudicate issues related to child custody.
58
Florida needs personal jurisdiction over the non-filing spouse in order to...
(Divorce)
adjudicate issues of property, spousal support, and child support.
59
How does a Florida court acquire personal jurisdiction in a divorce proceeding?
If the non-filing spouse resides in Florida;
Florida’s long-arm statute;
If the parties maintained a matrimonial domicile in Florida or
If the other spouse resided in Florida prior to the filing of the action.
60
Generally, a child is legitimate if...
his parents are married at the time of conception or birth.
If their parents marry at any time after birth.
If their parents’ marriage is voidable and has not been annulled
61
Children of a void marriage are considered...
illegitimate because the marriage was never valid.
62
A child conceived through artificial insemination or in vitro fertilization is...
irrebuttably presumed to be the child of the husband and wife, provided that both have consented in writing.
63
A non marital child...
benefits from a complete set of rights vis-à-vis his mother.
64
A nonmarital child may also benefit from the biological father if...
Biological father established his paternity rights by executing a notarized affidavit acknowledging paternity.
65
Nonmarital Child...
In order for the father to assert his own parental rights (such as contact and access with the child)...
his status must be established by a court.
66
After a judgment of paternity has been entered, or paternity was established through marriage, a father has the right to file a petition to disestablish paternity under the following circumstances:
(1) the father discovers and a scientific test proves that he is not the father;
(2) the father did not adopt the child;
(3) the mother did not have artificial insemination while married to the father;
(4) the mother did not interfere with the biological father’s ability to assert his parental rights; and
(5) the child is younger than 18 when the father files his petition.
67
The court can deny the petition to disestablish paternity if the father, while possessing the knowledge that he was not the father, performed any of the following acts:
(1) married the mother and assumed the parental obligations and duty to pay child support;
(2) acknowledged paternity in a sworn statement;
(3) consented to be named on the birth certificate;
(4) voluntarily promised in writing to support the child and was required to support the child based on that promise; or
(5) received written notice from any state agency or any court directing him to submit to scientific testing, which he disregarded.
68
To avoid a finding that he has abandoned his child, an unmarried biological father must...
assert his parental rights by providing support to the mother in a prompt and timely manner after finding out he is the father of the child
69
Adoption is
the process by which someone other than the biological parent of a child becomes his legal parent.
70
A child is eligible for adoption...
upon the death of both of his biological parents.
If one or both biological parents are living, the parental rights of the living parents must be terminated before a child is free for adoption.
This termination may occur either voluntarily or involuntarily
71
Who is eligible to be Adoptive Parents:
a husband and wife may adopt a person jointly
Unmarried adults may adopt
Florida has a categorical ban on gay and lesbian individuals adopting
72
A married person may adopt without the spouse joining in the adoption if ...
1) the spouse is the parent of the adoptee and consents to the adoption; or
2) the court finds good cause for the spouse to fail to join in the petition or consent to the adoption, or
the adoption is in the best interest of the child.
73
People may not be denied the right to adopt based...
on physical disability or handicap
If the court or adoption entity determines that a person’s disability or handicap renders the person incapable of serving as an effective parent, the adoption may be denied
74
When both parents have died and they have left no will designating a guardian for their minor child(ren), or when a parent’s parental rights have been terminated, the court will...
generally look to see whether there are biological relatives who are willing and able to adopt the child.
Unless the child’s deceased parents stated a different preference by will, grandparents in Florida have statutory priority to adopt the child
75
Where there are no biological family members who are willing and able to adopt a child with no legal parents, the court may allow...
An unrelated person to adopt. The best interest of the child standard will govern the decision. In the case of involuntary termination of parental rights, foster parents who have cared for the child may be considered particularly appropriate adoptive parents.
76
Once an adoption is complete, an adopted child maintains no legal connection to his biological family unless...
the adoptive parent is married to one of the child’s biological parents.
77
There are two types of surrogacy:
Traditional and Gestational.
78
Traditional surrogacy involves:
Using the husband’s sperm, with the surrogate providing her genetic material and gestating the child.
In traditional surrogacies, preplanned adoption agreements are used.
79
Gestational surrogacy involves:
Using a surrogate (also called a carrier), using an embryo created with the husband’s sperm and the wife’s egg implanted in the surrogate’s uterus.
Because the surrogate has not provided genetic material and is thereby not considered a “biological” parent of the child, it is not considered an adoption.
Therefore, a gestational surrogacy contract is used.
80
A preplanned adoption agreement is an agreement by which...
A volunteer mother agrees to bear a child and relinquish parental rights
81
Any party to the preplanned adoption agreement may terminate the agreement...
at any time
82
Can a parent voluntarily terminate parental rights?
Yes - usually for adoption.
However, courts will not allow voluntary termination for an unmarried couple, where one parent does not wish to exercise rights to contact and access or to pay support.
83
A birth mother may not execute a consent to adoption sooner than...
48 hours after the minor’s birth or the day the birth mother has been notified that she is fit to be released from the licensed
hospital or birth center, whichever is earlier.
84
A birth mother's consent to adoption can be withdrawn only if...
the court finds it was obtained by fraud or duress
85
When the child to be adopted is older than six months when the consent is executed...
The consent is valid upon execution.
However, the party signing the consent may revoke within three days or at any time prior to placement with the prospective adoptive parents, whichever is later
86
A court will terminate a parent’s rights when:
(1) the parent voluntarily executes a surrender, gives up the child to the Department of Children and Families;
(2) the court finds that the parent has abandoned, abused, neglected or endangered the child;
(3) the parent is incarcerated for a period of time that constitutes virtual desertion; or
(4) if the parent is a “career criminal,” convicted murderer, or sexual predator.
87
What is emancipation?
a minor child may be granted legal independence from his parents
88
The overriding principle regarding every decision the court makes for a child is the...
“best interest of the child” standard.
89
Florida law states that it is in the best interest of a child:
(1) to ensure that each minor child has frequent and continuing contact with both parents; and
(2) to encourage parents to share the rights, responsibilities, and joys of child rearing.
90
There are two components of child rearing upon which parents or the court must decide to create a parenting plan:
the decision-making component, called parental responsibility, and time-sharing.
91
Two types of parental responsibility:
Ultimate responsibility: The court may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child.
Parallel parenting: If the court divides those responsibilities up between the parents.
92
Areas of parental responsibility may include:
education, health care, and any other responsibilities that the court finds unique to a particular family.
93
If the court determines that shared parental responsibility would be detrimental to the child, it may order:
sole parental responsibility.
94
A parenting plan must be approved by the court, and it must describe in adequate detail how the parents will share and be responsible for:
(a) the daily tasks associated with the upbringing of the child;
(b) the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
(c) any and all forms of health care, school-related matters, or other activities; and
(d) the methods and technologies that the parents will use to communicate with the child.
95
In assessing the factors to create a parenting plan, the court must balance the best interest of the child standard with...
a parent’s constitutionally protected rights.
96
Relocation under Florida law is...
the relocation of a child to a principal residence more than 50 miles away from his principal place of residence at the time of the entry of the last order establishing or modifying the parenting plan or the time-sharing schedule, unless the new principal residence is fewer than 50 miles from either parent.
97
If parents agree to the relocation, a written agreement must be signed that:
CAWS
Consent
Arrangements for Transportation
In Writing
Schedule reflecting new time sharing
98
If an agreement has not been reached regarding relocation, any parent who is entitled to time-sharing must
notify the other parent if he is proposing to relocate.
The notice must include:
(1) Description of location, address and telephone number
(2) Date of the intended move
(3) Reasons for move
(4) Proposal for post relocation time sharing schedule, transport
(5) Unknown info must be updated
99
Burden of Proof (Relocation)
| The initial burden is on
the parent wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child.
100
Burden of Proof (Relocation)
If the initial burden of proof is met, the burden shifts to
the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.
101
In ruling on a proposed relocation, the court must consider all of the factors considered in a parenting plan determination (best interests), as well as the following additional factors:
(a) Mnemonic: Best interests of the child + WAGERS
(b) W Wants of child/parent
(c) A Age of child
(d) G Good faith
(e) E Established relationships
(f) R Reasons for move
(g) S Substance abuse or other abuse history
102
Parenting plans are modifiable upon a showing of...
a substantial change of circumstances, because the child’s needs have changed, the parent’s circumstances have changed, or the prior parenting plan has failed.
103
Time sharing (formerly called visitation) is only denied or supervised if
“detrimental to the child.”
104
Nonmarital Property?
Assets and liabilities acquired prior to the marriage are considered that spouse’s nonmarital property.
Also, some property acquired during the marriage can also be considered a spouse’s nonmarital property (e.g., inheritance, proceeds from personal injury lawsuit).
105
Unless certain actions are taken by either spouse to change the title or the value of the property during the marriage, the following property remains the sole and separate property of the spouse upon divorce:
(1) Acquired by either spouse prior to the marriage and retained separately;
(2) Assets acquired by either spouse by non-interspousal gifts (e.g. inheritance, devise, or descent – proceeds of inheritance)
(3) Income derived from a non-marital asset acquired during marriage UNLESS: Used as a marital asset
(4) Assets excluded by: validly written agreement (pre-nup, post-nup)
106
The court must take the following four steps in determining an equitable distribution scheme:
Mnemonic: I’m covered! (IMCOVD)
(1) I'M Identification of Marital/non-marital,
(2) CO Classification of Ownership,
(3) VD Valuation and Distribution
107
Methods of Converting Nonmarital Property to Marital Property
Transmutation by Title: Changing title to joint names
Transmutation by Commingling: Combining marital and nonmarital assets to the point that they are indistinguishable
Enhancement or Appreciation of nonmarital asset (Only enhanced value is marital)
108
What is marital property?
Property acquired during the marriage with marital funds or labor, regardless of whose name the property is titled under. If assets are acquired during a marriage with marital income or funds, those assets are marital.
Includes Assets and Liabilities, Retirement and Insurance Benefits
109
Under a separate property regime
How property is titled controls which spouse has the right to manage and control, including dispose of, property titled in his name, whether the property is marital or nonmarital, as that distinction arises during divorce, not during the intact marriage.
110
Under equitable distribution, Florida presumes that the property will be divided equally, but allows for the marital estate to be divided unequally, as long as
the result is equitable.
111
Marital misconduct alone is not a sufficient basis to deviate from an equitable distribution, unless
the conduct also depleted marital assets
112
Modification of Equitable Distribution
Unlike child custody, alimony, and child support, the division of marital assets and liabilities is final and cannot be modified in a subsequent action due to a change in circumstances.
113
The threshold for an award of alimony is based on:
(1) one spouse’s need for alimony; and
| (2) the other spouse’s ability to pay.
114
The general policy behind alimony is to allow an otherwise dependent spouse to become
economically self-sufficient.
115
Five Types of Alimony:
(1) temporary alimony (alimony pendente lite; suit money);
During the pendency of the divorce litigation. May not be waived in a prenuptial agreement.
(2) bridge-the-gap alimony; legitimate short term needs. Not exceed two years.
(3) rehabilitative alimony;To assist a party develop and establish a capacity for self-support
(4) durational alimony;
economic assistance for a set period of time
(5) permanent alimony.
(a) Permanent Alimony is awarded to a spouse who lacks the ability to be self sustaining.
116
The amount of alimony is
within the court’s discretion.
117
Factors Considered by the Court in Determining the Type, Duration, Amount of Alimony
(LSAT FACE):
(1) Length of the marriage – the longer the marriage the more important
(2) Standard of living – lifestyle of the couple (doesn’t consider luxuries – not deciding factors – private schools may count)
(3) Age of the parties
(4) Time needed to obtain educational training
(5) Financial resources of each party, earning capacities, education levels, employability of the parent and distribution of assets
(6) All income sources available to either party – even income from an investment
(7) Contribution to the marriage – services to the marriage, childcare, home-making
(8) Emotional and physical condition of spouses at time of divorce
(9) Catch All: the court uses its equitable powers to award alimony as it sees fit – other factors may be considered, adultery, spousal abuse, marital misconduct
118
The court considers the following factors in order to obtain a modification. The change must be:
(1) Permanent
(2) Significant
(3) Material
(4) Involuntary
(5) and something that could not have been contemplated at the time of the divorce or dissolution.
119
Termination of Alimony Obligation:
1. Death of either partner
2. Remarriage of recipient or supportive relationship
3. Cannot be discharged in bankruptcy but can be modified
120
General Principle of Child Support
In Florida, both parents have a duty to support their children regardless of whether they are married.
Courts can award support when parents are unmarried, married and seeking divorce, or married and not seeking divorce.
121
Florida follows the income shares model, under which...
child support is calculated so that the child will benefit from the same percentage of parental income as prior to divorce.
This model adds the mother’s and father’s income together, determines the appropriate child support from the guidelines for that income level, and then divides the child support award proportionally based on each parent’s income.
Health insurance, medical and dental expenses, and a portion of child care costs are also divided proportionally.
122
Temporary support is
support that one parent pays while the divorce is still pending and before there has been a permanent child support order from the court.
123
The child support obligation is usually terminated by
the death of a parent or the child
or when the child reaches the age of 18, becomes self-supporting, marries, dies, or joins the military; or if a child has some disability or incapacity that prevents him from supporting himself, parents may be required to support the child indefinitely.
124
Once a court enters a child support order, it has continuing jurisdiction to:
(1) modify the order, as necessary,
| (2) require the obligor to report to the court regarding the disposition of child support payments
125
Child support cannot be waived, either in...
a prenuptial agreement or marital settlement agreement, or ordered by the court.
126
What are settlement agreements?
Couples in divorce, paternity, or post-judgment (modification or enforcement) proceedings may reach a written agreement forgiving all issues (e.g., parenting plans, equitable distribution, alimony, child support, attorney fees).
Court cannot modify it, only the parties can.
127
Prenuptial Agreements
In anticipation of marriage, parties may modify their obligations during and after marriage through a written prenuptial agreement.
128
Requirements for a Prenuptial Agreement (also called antenuptial agreement):
i) SOF: Statute of Frauds must be satisfied – it must be in writing, signed by both parties
ii) Entry into the marriage is enough consideration
iii) The agreement is effective the day of marriage
iv) Must be made: voluntarily – no undue influence or coercion
129
Prenuptial agreements can decide:
i) Alimony
ii) Equitable Distribution
iii) Rights to control property
iv) Distribution of property upon death
130
If the waiver or elimination of such support would make a party eligible for public assistance, the court may
order support to an extent that would avoid such eligibility.
131
Prenuptial Agreements may not:
adversely affect the rights of a child to statutorily set child support. Courts will gladly let a parent pay more. Cannot delineate time sharing (that is the court’s job).
132
In order for a party to convince a court that a prenuptial agreement should not be enforced, the party against whom enforcement is sought must show that:
i) Not voluntary
ii) Product of fraud, duress, coercion, or overreaching
iii) Unconscionable or unfair
133
To decide whether the court will set aside the agreement for lack of fairness, you look at:
(a) Spouse was not given Fair and Reasonable Disclosure;
(b) If the party did not have ability to look at the assets to see what was there; (no waiver either)
(c) Other spouse could not have known what assets their partner had;
134
After marriage, the parties may amend, revoke, or abandon the premarital agreement only through...
a written agreement signed by both of them.
135
Florida probate law permits a party to waive his rights to:
(1) elective share;
(2) intestate share;
(3) pretermitted share;
(4) homestead;
(5) exempt property;
(6) family allowance; and
(7) preference in appointment as personal representative of an intestate estate.
