Family Law

Question 1

The purposes of this Act are to avoid jurisdictional dispute with courts of other states in matters of child custody & visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.

Answer 1

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)

Question 2

“Home State” Jurisdictional Test

Answer 2

The children’s home state is the state in which the children lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding.

Question 3

Where is a petition to modify an order regarding child support, child timesharing, and/or parental responsibility filed in FL?

Answer 3

Circuit Court.

Circuit courts have all original jurisdiction not possessed by county courts. An appeal of an order of the circuit court is filed in a district court of appeal.

Question 4

A determination of parental responsibility, a parenting plan, or a timesharing schedule may not be modified without a showing of:

Answer 4

Substantial, material, and unanticipated change of circumstances and a determination that the modification is in the best interests of the child.

Question 5

It is public policy of FL (with regard to timesharing and decision-making) that:

Answer 5

(1) Each minor child has frequent and continuing contact with both parents after the parents separate or the marriage is dissolved; and
(2) Parents are encouraged to share the rights, responsibilities, and jobs of childbearing.

Question 6

In FL, the court must order shared parental responsibility unless:

Answer 6

It would be detrimental to the child.

Meaning that both parents retain full parental rights and responsibilities with respect to the children and must confer with each other to determine major decisions affecting the welfare of the children.

Question 7

If shared parental responsibility would be detrimental to the children, however, the court may order:

Answer 7

Sole parental responsibility, with or without timesharing rights to the other parent.

The court may also divide the parental responsibilities between the parties based on the best interest of the children.

Question 8

What is a timesharing schedule?

Answer 8

A timetable that specifies the time, including overnights and holidays, that a minor child will spend with each parent.

Each parent has the right to reasonable timesharing.

A parent may forfeit this timesharing right by engaging in conduct that may injuriously affect the children’s welfare or morals.

The court may, on a proper showing, impose restrictions or conditions on timesharing. Absolute denial of timesharing is rare.

Question 9

Determination of the best interest of the children for purposes of parental responsibility and timesharing is made by:

Answer 9

Evaluating all of the factors affecting the welfare and interests of the children and the circumstances of the family, including:

(1) the demonstrated capacity and disposition f each parent to encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required;
(2) the division of parental responsibilities and tasks, including the extent to which parental responsibilities are delegated to 3rd parties;
(3) the length of time the child has lived in a stable, satisfactory environment and the desirability f maintaining continuity;
(4) the geographic viability of the parenting plan, with special attention to the needs of school-age children and the amount of travel time required under the parenting plan;
(5) the moral fitness of the parents, including each parent’s ability to maintain an environment free from substance abuse;
(6) the mental and physical health of the parents;
(7) the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express preference;
(8) the demonstrated capacity of each parent to be informed of the circumstances of the minor child (e.g., friends, teachers, activities) and to provide a consistent routine for the child;
(9) evidence of domestic violence, child abuse, child abandonment, or child neglect or evidence that either parent has knowingly provided false information to the court regarding the same; and
(10) the capacity of each parent to protect the child from ongoing litigation

Question 10

General rule regarding child support

Answer 10

Both parents equally share a duty to support their children.

Circumstances, however, may cast a greater burden on one of the parties.

Question 11

The award of child support should be based on:

Answer 11

Monetary needs and ability to pay.

The FL statutes contain child support guidelines –> presumed to indicate the proper child support amount to be awarded by a court in a modification proceeding.

Question 12

The vehicle for establishing, enforcing, and modifying interstate child support orders.

Answer 12

The Uniform Interstate Family Support Act (“UIFSA”)

Question 13

General rule regarding jurisdiction for child support

Answer 13

Jurisdiction is proper in the state in which the first action for support under UIFSA is filed.

If an obligee has obtained a support order from a foreign jurisdiction, the obligee may have the support order registered with the circuit court of FL, and the support order will then have the effect of, and be treated the same as, a FL court order.

UIFSA limits the ability of another court to modify the original support order.

The role of the obligor’s state is only to enforce the original order, unless none of the parties still resides in the issuing state or the parties consent in a record to the noising court’s assertion of jurisdiction to modify the order.

Question 14

When can child support awards be modified?

Answer 14

By a court with jurisdiction upon showing of substantial change in circumstances or financial ability of either party.

Question 15

Factors considered in connection with a claim of substantial change in circumstances include:

Answer 15

(1) financial ability (including merely an increase in the obligor’s ability to pay) and the needs of the parties and the children;
(2) compliance with the child support guidelines (there must be at least 15% or $50 difference between the guidelines and the past award, whichever is greater); and
(3) a finding that medical insurance is reasonably available

Question 16

For any proceeding in which child support is to be stablished or modified, each parent must file:

Answer 16

An affidavit showing her net income.

Using the total of these net incomes, the court finds the corresponding support amount from the statutory chart. This support amount is then allocated between the parents according to their respective net incomes.

Question 17

The court may impute income (in child support proceeding) to:

Answer 17

Voluntarily unemployed or underemployed parent, absent physical or mental incapacity or other circumstances over which the parent has no control.

Income may not be imputed at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed or rectified.

Income may not be imputed based on income records that are more than 5 years old at the time the hearing or trial.

Question 18

Departure from the child support guidelines in an amount that aries more than 5% requires:

Answer 18

That the court enter written findings and jurisdiction therefore.

Factors that may cause the court to adjust the minimum award include: extraordinary medical or educational expenses; seasonal variations in income; the child’s age; the particular shared parental arrangement and the total assets of the parents and the child; and the IRS dependency exception.

Question 19

The juste MUST order payment of child support that varies form the guidelines amount whenever:

Answer 19

Any of the children are required by court order, mediation agreement, or a particular shared parental arrangement to spend a substantial amount of time (at least 20% of the overnights in the year) with the obligor parent, whether the living arrangement is temporary or permanent.

Factors the court must consider in setting the amount include: the amount of time the children will spend with each parent; the needs of the children; the direct and indirect financial expenses for each child; the comparative income of each parent; the station in life of each parent and each child; the standard of living experienced by the entire family during the marriage; and the financial status and ability of each parent.

Question 20

A court competent to decide child custody matters (in FL, a circuit court) has jurisdiction to make a child custody determination, by initial or modification judgment if it is in the state that:

Answer 20

(1) is the child’s home state, or
(2) was the child’s home state within the past 6 months and the child is now absent from the state but a parent (or a person acting as a parent) continues to live in the state.

Question 21

Under the UCCJEA, the court that made the initial child custody determination has exclusive, continuing jurisdiction over the matter until the court determines that:

Answer 21

(1) neither the child nor the child’s parents (or persons acting as parents) continue to reside in in the state; or
(2) the child no longer has a significant connection with the state, and substantial evidence relating to the matter is no longer available in the state.

Question 22

In deciding whether relocation should be approved, a court must consider any factor affecting the best interest of the child, including:

Answer 22

(1) the extend of involvement and duration of the child’s relationship with each parent and other persons int he child’s life, and the feasibility of preserving those relationships through substitute arrangements for access;
(2) the child’s age and needs and the likely impact of the relocation on the child;
(3) the child’s preference, taking age and maturity into consideration;
(4) the current employment and economic circumstances of each parent and whether relocation will enhance the parent and child’s quality of life;
(5) the reasons of each person for seeking or opposing the relocation;
(6) whether the relocation is sought in good faith and the extent to which the objecting parent has complied with support obligations;
(7) the career and other opportunities available to the objecting parent if the relocation occurs; and
(8) any history of substance abuse or domestic violence

Question 23

If a parent desires a change of residence that would relocate the child at least 50 miles from her current residence, the parent must either:

Answer 23

(1) obtain the written consent of every person entitled to time-sharing with or access to the child; or
(2) serve a petition to relocate on every person entitled to time-sharing with or access to the child.

Relocating a child without complying with these requirements subjects the parent in violation to contempt and other proceedings to compel the return of the child.

Question 24

The court may take the violation of relocating a child into account in any initial or post judgment action seeking a determination or modification of the access or time-sharing schedule as:

Answer 24

(1) a factor in making a determination regarding the relocation of a child;
(2) a factor in determining whether the access or time-sharing schedule should be modified;
(3) a basis for ordering the temporary or permanent return of the child;
(4) sufficient cause to order the parent in violation to pay reasonable expenses and attorney’s fees incurred by the party objecting to the relocation; and
(5) sufficient cause for the award of reasonable attorney’s fees and costs, including interim travel expenses incident to access or time-sharing or securing the child’s return

Question 25

Upon dissolution of marriage, the court effectuates:

Answer 25

An equitable distribution of all marital property

Question 26

Marital assets include:

Answer 26

(1) those acquired by either or both spouses during the marriage other than assets acquired through gift, bequest, or descent;
(2) enhancement of, or appreciation in, value of nonmarital assets as a result of the efforts of either spouse during marriage or from the contribution to or expenditure of marital funds;
(3) intefspousal gifts during the marriage; and
(4) all benefits accrued during the marriage in retirement plans, pension plans, profit-sharing plans, and the like.

Question 27

Nonmarital assets include:

Answer 27

assets acquired by either spouse by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.

Question 28

FL courts have the discretion to consider any and all factors necessary to do equity and justice to the parties regarding the equitable distribution of marital assets and liabilities. Some of the factors the court considers are:

Answer 28

(1) each spouse’s contribution to the marriage;
(2) each spouse’s contribution to the care and education of the children;
(3) services of the homemaker;
(4) economic circumstances;
(5) the duration of the marriage;
(6) each spouse’s career and education sacrifices; and
(7) the desirability of retaining any asset free from claim and hostile interference by the other spouse

Question 29

If marital funds are commingled in an account with nonmarital funds, the account becomes:

Answer 29

A marital asset for distribution upon dissolution of the marriage.

Question 30

The date for determining marital assets and liabilities is the earliest of:

Answer 30

(1) the date that the parties enter into a valid separation agreement;
(2) the date specifically provided by a valid separation agreement;
(3) the date of the filing of a petition for dissolution of marriage; or
(4) such other date that the court determines is just and equitable under the circumstances

Question 31

A postnuptial property settlement agreement must be:

Answer 31

voluntarily entered into without fraud, overreaching, cures, or coercion.

Question 32

In determining voluntariness for a postnuptial property settlement agreement, courts consider such factors as:

Answer 32

(1) the time and place the agreement was presented (to consider whether there was sufficient time to reviewing reflect on the terms of the agreement),
(2) the opportunity to seek counsel; and
(3) statements made during the presentation of the agreement.

Question 33

An agreement is not enforceable if the contesting spouse proves that the agreement was unconscionable when it was executed and, before execution, that he:

Answer 33

(1) was not provided with a fair and reasonable disclosure of the property or financial obligations of the other party;
(2) did not voluntarily and expressly wave in writing any right to further disclosure of the property or financial obligations; and
(3) did not have (or reasonably could not have had) an adequate knowledge of the property or financial obligations of the other party.

Question 34

In cases where the marital settlement agreement is reached after the initiation of litigation and the completion of discovery, a party challenging the agreement should not be permitted to claim:

Answer 34

lack of knowledge, because through due diligence during discovery, he could have unearthed all the relevant facts.

Question 35

Postnuptial agreements to settle property rights are generally:

Answer 35

binding and specifically enforceable

Question 36

Can postnuptial agreements to settle property rights be modified by a court?

Answer 36

No

Question 37

If the agreement, as a whole, plainly shows the parties intended it to be a final settlement of obligations concerning property of any kind, the agreement is:

Answer 37

A property settlement

Question 38

Relinquishment of a valuable property right in consideration for periodic payment generally results in:

Answer 38

A property settlement

Question 39

The property settlement from a dissolution may be overturned for fraud if:

Answer 39

A motion seeking relief from judgment is filed within 1 year (although a motion seeking such relief based on a fraudulent financial affidavit is not subject to the one-year limitation and may be filed within any reasonable time)

Question 40

Are alimony and child support agreements final?

Answer 40

No.

Does not matter whether executed before or after marriage. They can be modified by a court as equity requires.

Question 41

Either party to an alimony or child support agreement may apply to the court for a modification due to:

Answer 41

A substantial change in circumstances

Question 42

Alimony is available to:

Answer 42

Either spouse, absent wave in a valid agreement.

Question 43

Types of alimony provided for by statute in FL:

Answer 43

(1) Alimony pendent lite (suit money) - may be awarded in every proceeding for dissolution of the marriage
(2) Permanent alimony for a modifiable amount for the necessities of a spouse who has neither the resources nor the ability to be self-sustaining;
(3) Rehabilitative alimony to assist a spouse in obtaining education or training necessary to find employment facilitating self-sufficiency;
(4) Durational alimony, which may be awarded when permanent alimony is inappropriate, to revived a party with economic assistance for a set period of time (not exceeding the length of the marriage) following a marriage of short or moderate duration; and
(5) Bridge-the-gap alimony, which may be awarded to assist a party in making a transition from being married to being single, for a period not to exceed 2 years.

Question 44

Permanent, durational, and rehabilitative alimony can be modified upon a petition:

Answer 44

Showing a substantial change in circumstances.

Question 45

Permanent and durational alimony will terminate upon:

Answer 45

The death of either spouse or remarriage of the recipient spouse unless otherwise specified.

Question 46

Rehabilitative is modifiable upon petition, and generally terminates:

Answer 46

At the death of either party.

Question 47

Bridge-the-gap alimony may not:

Answer 47

Be modified in amount or duration.

Question 48

In determining the type and amount of alimony, FL courts consider the following factors:

Answer 48

(1) the standard of living during the marriage;
(2) the duration of the marriage;
(3) the age and emotional and physical condition of both parties;
(4) the financial resources and sources of income of each party;
(5) where applicable, the amount of time needed to obtain education or training;
(6) each party’s contribution to the marriage, including homemaking, children, education and career-building of the other party; and
(7) any factors that will foster equity

Question 49

For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is one having a duration of:

Answer 49

Less than 7 years

Question 50

For purposes of determining alimony, there is a rebuttable presumption that a moderate-term marriage is one having a duration of:

Answer 50

Greater than 7 years but less than 17 years

Question 51

For purposes of determining alimony, there is a rebuttable presumption that a long-term marriage is one having a duration of:

Answer 51

17 years or longer

Question 52

The length of a marriage is the period of time from:

Answer 52

The date of marriage until the date of filing an action for dissolution.

Question 53

Permanent alimony may be awarded following a marriage of long duration if:

Answer 53

Appropriate on consideration of the factors

Question 54

Permanent alimony may be awarded following a marriage of moderate duration if:

Answer 54

the award is appropriate, based on clear and convincing evidence, upon consideration of the factors

Question 55

Permanent alimony may be awarded following a marriage of short duration if:

Answer 55

there are written findings of exceptional circumstances

Question 56

A court may reduce or terminate an award of permanent alimony when there is:

Answer 56

A supportive relationship between the obligee and person with whom the obligee resides and who is not related by consanguinity or affinity.

Question 57

In determining whether a relationship between the obligee and person with whom the obligee resides and who is not related by consanguinity or affinity exists, the court may consider factors such as:

Answer 57

(1) the extent to which the 2 people have held themselves out as a married couple;
(2) the period of time the obligee has resided with the other person in a permanent place of abode;
(3) the extent to which the obligee or the other person has supported the other, or performed valuable services for the other or the other’s company;
(4) whether the two have jointly contributed to the purchase of any real or personal property; and
(5) whether the obligee and the other person have provided support to the children of one another.

Question 58

The duty to support continues until the child is:

Answer 58

Emancipated (upon reaching 18 years of age, marriage, or self-sufficiency).

Question 59

Pursuant to FL statute, a child support order must provide:

Answer 59

(1) For child support to terminate on a child’s 18th birthday (unless the child is physically or mentally dependent or is a dependent between ages 18 and 19 in high school studying to graduate);
(2) A schedule stating the amount of the monthly support that will be owed for any remaining children after 1 or more of the children are no longer entitled to receive support; and
(3) The specific date that the reduction or termination of support becomes effective.

Question 60

A man may file a petition in circuit court to disestablish paternity or terminate a child support obligation when he is not the biological father of the child. If relief is granted:

Answer 60

(1) It is limited to the issues of child support payments and termination of parental rights;
(2) The man’s previous status as father is deemed to have continued until the order was granted, and all prior lawful actions based on that status are confirmed retroactively;
(3) It does not give the man a cause of action to recover previously paid child support; and
(4) It does not affect the legitimacy of a child born during the lawful marriage.

Question 61

A petition in circuit court to disestablish paternity or terminate a child support obligation when he is not the biological father of the child must include:

Answer 61

(1) An affidavit that newly discovered evidence relating to the paternity of the child has come to the man’s knowledge since the initial paternity determination or establishment of a child support obligation;
(2) The results of scientific tests administered within 90 days of the petition showing that the man cannot be the father of the child (or affidavit stating he did not have access to the child to have such testing performed; and
(3) An affidavit stating that he is current on all child support payments for the child or that he has substantially complied with his child support obligation and that any delinquency is from inability to pay or based on just cause.

Question 62

The court may not set aside the paternity determination or child support order if after discovering that he was not the child’s biological father, the man:

Answer 62

(1) consented to be named the biological father on the child’s birth certificate; or
(2) promised in writing to support the child and was required to support the child based on that promise

Question 63

If a party defaults on an alimony or support payment, the court can:

Answer 63

Issue an income deduction order to that party’s employer. The employer must deduct the ordered sum from any money due and payable and forward it to the central depository.

Wages, dividends, and retirement funds are all subject to income deduction orders.