Family Law Flashcards
Checklist for every FL family law question:
D divorce/dissolution/annulments/dissolution agreementsE equitable distribution, A alimony,T time sharing, S support for children
Right to marry is…
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.
The right to procreate is…
A fundamental right
Right to Engage in intimate Relationships
Under the Due Process Clause, states may not criminalize consensual sexual relationships between adults
Right to Use Contraception
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.
Right to have an Abortion
States may not impose an undue burden on a woman’s right to terminate a pregnancy
Right to make Family-Based Decisions
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.
Right to live with Family members
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
Right to have a meaningful Relationship with One’s Child
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.
Civil marriage, defined and controlled by state law, is
a contract between two individuals eligible to marry.
For a marriage to be valid,
all the essentials of a contract—such as capacity and consent—must be present
Florida law provides that marriage is legal only between
one man and one woman
A marriage is presumed to be valid unless
demonstrated otherwise.
If a person has been married more than once,
the most recent marriage is presumed to be valid.
There are four circumstances that make a marriage void in Florida.
BigamyIncestuous MarriagesMarriages between:Lineal Consanguinity, Brother or Sister, Uncle or Aunt, and Nephew or Niece.Same Sex MarriageDomestic PartnershipsCivil UnionsCommon Law Marriages after Jan 1 1968
Putative Marriage exists where:
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
In Florida, the following attributes apply to void marriages:
(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.
A marriage is voidable in Florida based on:
mental or physical incapacity (i.e., impotence), underage, duress, undue influence, or fraud.
In order to contract marriage,
both parties must be competent to give consent
In order for a marriage to be valid,
both parties must give their consent and must have the intent to marry.
Legal Formalities for Marriage in Florida
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.
People authorized to marry others:
(1) Judge(2) Former Judge(3) Ordained Ministers(4) Circuit Court Clerks(5) Notary**The person who performs the ceremony signs the application.
If there is a procedural defect (but no fraud), the couple is…
deemed married.
In general, the validity of a marriage is determined by the law of…
the locus of its celebration.
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.
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.
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
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.
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; and6) make, execute, and deliver instruments of any character.
Wives in Florida are responsible for paying their own debts…
incurred prior to the marriage
A husband still has the duty to…
support and maintain his wife and children.
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.
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.
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.
The marital privilege may be claimed by:
(a) the spouse himself or herself;(b) the spouse’s guardian; or(c) the spouse’s conservator.
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.
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
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.
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.
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.
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.
Examples of void marriages:
(1) bigamy;(2) incestuous marriage;(3) same-sex couple; or(4) common law marriage.
If a marriage is merely voidable, as opposed to void…
it remains valid until annulled.
An impediment to a voidable marriage may be…
cured.
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
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.
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
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; andd. laches.
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; andc. division of property;
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.
Divorce is
the legal dissolution of a valid marriage.
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.
After abolishing fault-based divorce, Florida established two grounds for divorce:
a. irretrievable breakdown of the marriage; orb. mental incapacity of one of the parties.
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
