family law Flashcards
family law: types/rules of law used
family law rules and rules of civil procedure
family law mandatory disclosure
requirement of financial documents for both parties and a continuing duty to disclose supplemental information
long form disclosures
if more than $50k in question; 10 additional interrogatories than with standard interrogatories
marital agreements in general
law of K is involved; generally valid if 1-voluntary (appropriate time and place to review, opportunity to seek counsel, and statements made during presentation); 2-fair and just or after full and fair disclosure/discovery.
premarital agreements
statute of frauds applies-must be in writing; marriage is sufficient consideration; courts will strictly scrutinize for good faith and lack of consideration; full financial disclosure is not required; can’t leave spouse dependant on the state w/o extra support and can’t mention kids or parental responsibility; can address attorney fees
post-nuptial agreements
do not fall under SOF, but subject matter may such as property; can waive alimony right; cannot waive child support or determine who will have parental responsibility; if agreement does not fairly provide for contesting spouse, must have full and fair financial disclosure before signing posnup; mutual promises are consideration; can waive right to elective share; may address parental responsibility and child support, but cannot adversely affect the kid
marriage rights
right to marry is a fundamental constitutional right-any restrictions must be the least restrictive means and serve a compelling state interest-any regulation can’t burden too much;
common law marriage
not recognized after 1968; can recognize pursuant to full faith and credit if valid in another state; parties must have had mental capacity to K; must hold each other out as married-present tense marriage
statutory marriage requirements
voluntary consent; must have K mental capacity; if under 16, needs court permission; if 16-18, okay if pregnant, have a baby, parents or court okay it;
valid marriage requirements
license; opposite sex; 3-day waiting period if no prep course was completed; solemnization-ceremony by judge, authorized public official, or religious institution; certify license w/i 10 days
proxy marriages
not recognized in FL
termination of marriage in general
circuit court jurisdiction;
annulment
treats parties as if no marriage existed; invalid marriage; no alimony except during the action-but can recover damages; common law based-not statutory; impediment (impotency, sham) had to exist at the time of the marriage; a child of an annulled marriage is not considered to be a child of that marriage
void marriage
Void: like it never happened; does not require judicial order; two basis: 1-prior existing marriage; 2-lack of mental capacity; any party may seek to annul, no act can ratify. Voidable: requires judicial decree; only a spouse can seek to annul: 1-incest (w/i a degree, half-blood); 2-age; 3-impotence (naturally and incurably impotence & other party did not know before marriage); 4-intoxication (incapable to K); 5-fraud, mis-rep, duress, coercion (must be present at time); 6-lack of intent (meant as joke)
property of an anullment
courts try to place parties in same positions as if never married; alimony is never available except for pendent lite during the action
defenses to annulllment action
recrimination (unclean hands)- both parties are guilty of same thing; laches-doesn’t seek in a timely manner; and ratification-conduct based after marriage; condonation-continued cohabitation
divorce in general
residency requirement of 6 months to file in FL; full faith and credit given to a divorce in another state; no legal separation in FL; FL is a “no fault” divorce state
divorce grounds
“no fault” state-eliminates fault. two types: 1-irretrievably broken (court must make the finding, needs testimony of only 1 spouse, even if curable; if spouse contest, court can continue the matter for 3 moths, order counseling, or order that divorce is in best interest of kids); 2-incapacity (1 of the parties was mentally incompetent).
divorce defenses
denial of the grounds (good luck with that)
simplified divorce
no kids, no argument over assets, must still file financial affidavit disclosure, goes to county court instead if circuit court, no legal counsel, wife not pregnant, must still draft settlement agreement
equitable distribution in general
not always 50/50 division of property, but division must be equal, unless unequality is justified
separation agreement
merges into final judgment of divorce; legal separations are not recognized in FL
property agreement
settles property and money; must be intended by both parties to be final; cannot be modified once executed
validity of marriage agreements
1-writing; 2-signed; 3- fair; 4- reasonable; 5-full disclosure
marital assets and liabilities
acquired by spouse during marriage or from a source connected to marriage. 1-assets acquired by either or both spouses during marriage, other than through gift, bequest, or descent; 2-enhancements of, or appreciation in, value of non-marital assets as a result of the efforts of the other spouse during the marriage or from contribution to or expenditure of marital funds; 3-interspousal gifts during the marriage; 4-all benefits accrued during marriage in vested or non-vested retirement plans, pension plans, profit-sharing plans, etc.; 5-earnings and wages; 6-marital residence-considering dependent kids