Family Law

Question 1

Dissolution Standard

Answer 1

• Divorce is the legal dissolution of a valid marriage. Florida is a no-fault divorce jurisdiction, which encompasses two grounds for divorce:

1. the marriage is irretrievably broken; or
2. the mental incapacity of one of the parties.

• For a divorce based on mental incapacity, the incapacitated party must be adjudged so for at least three years in accordance with statutory procedures.
• The court may appoint a guardian ad litem to protect the person’s interest in the dissolution proceedings.

Question 2

Divorce Allocation Considerations

Answer 2

• The court may continue an action for up to three months to provide the parties the opportunity to reconcile, if one party contests the divorce or if there are minor children who would be adversely affected by the divorce.
• The court may also require the parties to seek counseling but will not mandate it if at least party is opposed.
• The court will consider misconduct, including adultery, dissipation of assets, and spousal or child abuse in determining

1. alimony;
2. equitable distribution of marital assets;
3. parental responsibilities; and
4. awards of attorney’s fees.

Question 3

Subject Matter Jurisdiction

Answer 3

• In Florida, only one of the two spouses must reside in Florida for Florida to assert subject matter jurisdiction and grant a divorce.
• The spouse whose residency is alleged in order to provide Florida with jurisdiction must have been a resident for at least six months prior to the filing of the proceedings.
• The spouse filing does not need to be the one meeting the residency requirement.

Question 4

Personal Jurisdiction

Answer 4

• Florida does not need personal jurisdiction over the non-filing spouse in order to grant a divorce or adjudicate issues concerning child custody.
• Florida needs personal jurisdiction over the non-filing spouse in order to adjudicate issues of property, spousal support, and child support.
  
  • If the non-filing spouse resides in Florida, the court has personal jurisdiction over the non-filing spouse.
  • If the non-filing spouse does not reside in Florida, the court must look to Florida’s long-arm statute to assert personal jurisdiction.
• The court will have personal jurisdiction if the parties maintained a marital domicile in Florida or if the other spouse resided in Florida prior to filing the action.

Question 5

Equitable Distribution

Answer 5

• In Florida, property is distributed under an equitable distribution standard.
• In Florida, it is presumed that the property will be divided equally unless equity requires an unequal distribution.
• Florida courts also will consider marital misconduct, such as an extramarital affair or gambling, in deciding equitable distribution, but such misconduct is only relevant if it resulted in a depletion of any marital assets.
• In deciding equitable distribution, the court will—

1. identify all property owned by the parties, either jointly or individually;
2. classify the property as either marital or non-marital;
3. determine ownership and valuation of the property; and
4. determine how such property will be distributed.

• The court will consider the following factors when determining equitable distribution:

1. assistance of one spouse to the other;
2. contributions of the spouses to the marriage;
3. interruption of career by a spouse;
4. the desirability of a spouse to retain a certain asset;
5. any misconduct that depleted an asset;
6. economic circumstances of each;
7. the length of the marriage; and
8. the desirability of a spouse to retain the residential home for the children.

Question 6

Determining Marital Assets

Answer 6

• Marital property (assets and liabilities) is that acquired during the marriage with marital funds or labor, regardless of how the property is titled.
• Non-marital property consists of assets and liabilities acquired prior to the marriage, as well as inheritances, gifts, and proceeds from personal injury lawsuits received during the marriage.
• Such property remains non-marital property unless the titled spouse takes affirmative steps to convert the property to a marital asset, there is a commingling of the non-marital asset with marital property, or a non- titled spouse contributes to the increase in value of the property.
• In addition, under the Florida Constitution, a homestead exemption is provided to ensure protection of a family residence.
  • In order for property to be deemed homestead property, the home must be the primary residence, and be limited to 1/2 acre if located in an incorporated area, or up to 160 acres of contiguous land located in an unincorporated area.
  • The exemption/protection is provided to both the owner of the property, the spouse even if not named on the title to the property, and the children. Dissolution of marriage does not nullify the homestead exemption.

Question 7

Alimony

Answer 7

• Under general alimony principles, alimony is awarded based on one spouse’s need and the other spouse’s ability to pay such alimony.
• Alimony is a mutual obligation, and it is within the court’s discretion (no statutory tables like child support) to determine if alimony should be awarded to either spouse in consideration of the following factors:

1. length of marriage;
2. standard of living enjoyed during the marriage;
3. the age of the parties;
4. any time needed for education or training for a spouse;
5. the financial resources of the respective spouses;
6. all income sources available to each spouse;
7. contributions to the marriage; and
8. the emotional and physical condition of each spouse at the time of the divorce.

Question 8

Alimony Types

Answer 8

In Florida dissolutions occurring after July 1, 2010, there are five types of alimony that may be awarded:

1. bridge-the-gap, to provide financial assistance to one spouse for no more than two years that will help in the transition from married to single life—it is granted for short term needs and may not exceed 2 years;
2. rehabilitative, to assist a spouse with education and training required for re-entry into employment—the needy spouse must file a plan with the court outlining a time frame and steps to be taken for rehabilitation;
3. permanent periodic, awarded when the spouses were married for more than 17 years, which is awarded when a spouse lacks the ability to become financially self-supporting;
4. temporary, which can be awarded during the pendency of the dissolution proceeding and may not be waived in a prenuptial agreement; or
5. durational, awarded if necessary to spouses married from zero to 17 years, which terminates upon death or remarriage.

Question 9

Modification of Alimony

Answer 9

• In Florida, alimony can be modified, with the exception of lump sum and bridge-the-gap alimony.
• The court considers the following factors in considering modification: There must be a change in circumstances that is—

1. permanent;
2. material;
3. significant;
4. involuntary; and
5. something not contemplated at the time of the final judgment of dissolution.

Question 10

Adoption: Involuntary

Answer 10

• Adoption is the process by which a non-biological person becomes the legal parent of a person (adults can be adopted as well).
• A child can be adopted upon the death of both parents, the consent of a living parent(s), or the termination of parental rights by a court.
• Once an adoption is finalized, an adopted child is considered the legal child of the adoptive parent, and the child has no legal connection to the biological parent whose rights were terminated.
• Additionally, the adopted child has equal legal status to a biological child of the adoptive parent(s).

Question 11

Termination of Parental Rights:

Dependency Proceedings

Answer 11

• Involuntary termination of parental rights can occur if—

1. a parent executes a surrender;
2. a parent is incarcerated for a period that constitutes virtual desertion;
3. the parent is a career criminal, a convicted murderer or sexual predator; or
4. the court finds that a parent has abandoned, abused, neglected or endangered the child.

• To avoid a finding of abandonment, an unmarried biological father must assert his parental rights by providing support to the mother promptly and timely after discovering his paternity.
• A parent whose child has been adjudicated dependent because of any of the above will be ordered to comply with a case plan created by the Department of Children and Families.
  • Failure to comply with the case plan will result in a termination of the parent’s rights.

Question 12

Adoption: Voluntary/Consent

Answer 12

• Adoption is the process by which a non-biological person becomes the legal parent of a person (adults can be adopted as well).
• A child can be adopted upon the death of both parents, the consent of a living parent(s), or the termination of parental rights by a court.
• If a parent consents to the adoption and the child is more than six months old, the parents have a three-day revocation period.
• If the revocation period has lapsed, the court may still void a prior consent if there is a finding of fraud or duress.
• Once adopted, the child has equal legal status to a biological child of the adoptive parent(s).

Question 13

Parental Responsibility/Custody

Answer 13

• Parental responsibility deals with the decision-making aspects of the child’s life, and can be divided as either shared parental responsibility or sole parental responsibility.
• Shared is the presumption, with both parents having equal say in major decisions affecting the child. Sole is awarded only if shared is deemed by the court to be detrimental to the child.
• The overriding principle is the best interest of the child, which must be balanced with the parents’ constitutional parenting rights.
• The court will consider twenty factors, including

1. length of time child has been in a good, stable environment;
2. abilities of each parent (financial, moral, physical, mental);
3. preferences of the child, if of the appropriate age to do so;
4. parent’s ability to allow parenting time with the other; and
5. if there has been any substance or domestic abuse by a parent.

• A parenting plan must be developed (either through agreement of the parties or by a magistrate or mediator assigned) and must be approved by the court.
• The plan must include parental responsibility of each (which activities and decision-making for which each will bear responsibility), and time-sharing (how and when the child will spend time with each parent).

Question 14

Modification of Parenting Plan

Answer 14

Parenting plans can be modified upon a showing of a substantial change of circumstances affecting the child’s welfare. A substantial change of circumstances includes—

1. child’s needs;
2. parental circumstances have changed; or
3. the parenting plan has failed.

• The parent seeking the modification must show that the substantial change is—
  
  1. material;
  2. significant;
  3. permanent; and
  4. not anticipated at the time the original parenting plan was ordered.

Question 15

Relocation of Child

Answer 15

• In Florida, relocation is the relocation of the child to a principal residence more than 50 miles away from his or her principal place of residence at the time of the last order establishing or modifying the parenting plan or the time-sharing schedule.
  
  • If the parents agree to the relocation, an agreement must be reached that is—
    
    1. in writing;
    2. reflects the consent to relocate;
    3. sets forth a schedule for the new time-sharing; and
    4. includes arrangements for transportation.
  • If the parents do not agree to the relocation, the court will consider the best interest of the child, together with the following factors:
    
    1. wants of the child;
    2. age of the child;
    3. good faith of the relocating parent;
    4. established relationships of the child with others;
    5. reasons for the move; and
    6. substance or other abuse history.
  • The initial burden is on the parent seeking to relocate to prove by a preponderance of the evidence that the relocation is in the best interest of the child.
  • If that burden is met, the non- relocating parent then has the burden to prove by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

Question 16

Child Support

Answer 16

• In Florida, both parents have a duty to support their children.
• Support can be awarded when the parents are unmarried, married, seeking divorce, or married and not seeking divorce.
• Neither parent can waive child support.
• Florida has a statutory income shares model that determines how child support is calculated, providing benefit to the child from the same percentage of parental income as prior to the divorce.
  
  • A statutory formula is used to determine the minimum amount of child support need, and how such support should be divided between the parents.
  • There are also requirements for health care and other items to be provided for the child’s benefit.
  • Temporary support may be ordered by the court while the divorce is pending.
• In order for a child to be adopted, the parental rights of at least one parent must have been terminated.
  
  • When parental rights have been terminated, there is no longer a duty to provide support to the child.
  • An adoptive parent has the same duty to provide support as that of a biological parent.

Question 17

Marital Agreements

Answer 17

• Prenuptial agreements are entered into in anticipation of marriage, and through such an agreement—which must be in writing and signed by both parties—the parties may modify their obligations during and after marriage.
  
  • Modifications, amendments and revocations are permitted to the agreement after marriage, and no additional consideration is necessary.
  • Any statute of limitation applicable to any action for relief under the agreement is tolled during the marriage.
• Prenuptial agreements can cover a variety of matters, and are valid in the absence of a showing of unconscionability, duress, or fraud.
  
  • The marriage is the only consideration necessary for the agreement to be valid, and the agreement becomes effective when the parties marry.
• Florida probate law permits a party to waive his/her rights to—

1. elective share;
2. intestate share;
3. pretermitted share;
4. homestead;
5. exempt property;
6. family allowance;
7. spousal support; and
8. preference in appointment as personal representative of an intestate estate.

Question 18

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 18

• The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is intended to avoid jurisdictional competition and conflicts among state courts in matters of child custody when a child is moved from one state to another.
• The UCCJEA does not apply to—

1. child support orders;
2. orders regarding monetary obligations of an individual;
3. proceedings involving juvenile delinquency, contractual emancipation, or enforcement; or
4. proceedings regarding emergency medical care for a child.

• In determining if it has jurisdiction, a Florida court must follow a hierarchy:

1. The home state is where the child has lived for six months prior to the filing of the custody proceedings;
2. significant connections—if there is no home state, Florida has jurisdiction if at least one parent and the child have a significant connection with Florida;
3. more appropriate forum—if other states have declined jurisdiction because that state is inconvenient or because jurisdiction was obtained in another state due to one parent’s unjustifiable conduct, Florida will take jurisdiction; and
4. default jurisdiction (state of last resort)—if no other state has jurisdiction, Florida can take jurisdiction.

• Once Florida enters a child custody order, it has continuing exclusive jurisdiction over custody-related matters.
  
  • Florida can lose jurisdiction if both parents and the child no longer reside in Florida, or if the child no longer has a significant connection to Florida.
• Florida may not modify another state’s custody order unless that state no longer has continuing exclusive jurisdiction over the custody-related matters.