Family Law Flashcards
Can a spouse petition the court for alimony and child support w/o petitioning for dissolution of marriage?
Yes
What does equitable distribution mean
Upon dissolution, the Court will equitably distribute all the marital assets. Court must strive for equality/ Court has discretion to deviate from “equal” but must provide justification for doing so.
Non- Marital Asset
(1) gift/inheritance named to one spouse
(2) property owned prior to marriage
(3) income earned from property owned prior to marriage
(4) pain and suffering in a tort judgment (except for recovery of medical expenses or lost wages)
(5) anything else agreed to in writing
(6) Non-marital asset commingled with marital asssets
Marital Asset
(1) Assets acquired by either or both spouses during the marriage.
UNLESS it was gifted or devised to an individual spouse by a third party.
(2) Appreciation in value of nonmarital assets as a result of the efforts of the other spouse or the expenditure of marital funds.
(3) Interspousal gifts during the marriage.
E.g., the diamond necklace that H gave to W on their 10th wedding anniversary.
(4) Any retirement assets accrued during the marriage.
Retirement assets accrued prior to the marriage are not part of the pool.
(5) Real property held as T by E, even if purchased with nonmarital funds, unless spouse can prove it wasn’t meant as a gift
(6) Marital home 0 if kids, court will try to give marital home to primary caregiver
What should court consider in dividing marital assets
Contribution to the marriage;
Contribution to care and education of children;
Services of the homemaker, contribution to the career or other spouse;
Economic circumstances;
Duration of the marriage;
Career and education sacrifices; and
Desirability of retaining asset free from hostile interference from the other spouse.
Waste of martial assets
Date for determining martial assets
(i) date provided by sep agreement; (ii) date of filing dissolution (iii) any other date court determines. Court decides what date to value assets, and may use different dates for different assets.
May a court order an interim partial distribution of assets and liabilities ?
Yes, upon a showing of good cause, but must make a specific finding that it will not cause prejudice or inequity to other party
Main consideration for alimony - court must make specific finding
Need vs. ability to pay
Types of Alimony
Powerful Blue Ribbon Divorce Party
(P)endente lite (B)ridge–the–gap (R)ehabilitative (D)urational (P)ermanent
Pendente Lite
Covers immediate living expenses and costs during the pendency of the dissolution proceedings.
Always available, if there is need by one spouse and ability to pay by the other.
Bridge-the-Gap
To assist one spouse in the transition from being married to being single.
When you go from being married to being single, you now need two of everything:
Two homes; Two beds; Two sets of dishes.
Maximum duration of two years.
Once the order is entered, it cannot be modified in amount or duration.
Terminates upon death or remarriage
Rehabilitative
To assist one spouse in obtaining education or training necessary to become self–sufficient.
-There must be a specific rehabilitative plan.
-Award can be modified or terminated if:
=Change in circumstances; or
=Noncompliance with rehabilitative plan; or
=Completion of rehabilitative plan.
Durational
awarded when permanent alimony is inappropriate. Periodic payments awarded for a definite period of time not to exceed the length of the marriage.
Length of time cannot be modified, but the amount can upon a showing of substantial change in circumstance.
Terminated upon death or remarriage of recipient.
Permanent
Awarded if a spouse lacks financial ability to be self–sustaining.
Marriage of Long Duration (17 or more): awarded if appropriate upon consideration of the statutory factors.
Marriage of Moderate Duration (7-17): awarded if appropriate upon clear and convincing evidence of need based upon the statutory factors.
Marriage of Short Duration (less than 7): there must be written findings of exceptional circumstances.
The court must issue a finding that no other form of alimony is fair or reasonable under the circumstances (ABSOLUTELY NUCLEAR OPTION).
Permanent alimony precludes receipt of any other form of alimony, except pendente lite.
Award may be modified or terminated upon substantial change in circumstances or existence of supportive relationship
Factors to determine whether to award durational or permanent maintenance
SAD FRET ME
(1) Standard of living during the marriage;
(2) Age and health of parties
(3) Duration of the marriage
(4) Financial resources and sources of income
(5) Responsibilities of minor children
(6) Earning capacities, education, vocational skills
(7) Tax treatment
(8) Marital contribution; and
(9) Equity (any factors that foster equity).
May adultery be considered in awarding maintenance?
Adultery may be considered if it contributed to depletion of assets.
Attorney’s Fees
Attorney’s fees can also be awarded based on the same considerations as pendente lite:
NEED vs. ABILITY TO PAY.
Contempt
obligor must have had the present ability to comply with the order but willfully failed to do so. Burden is on obligor that he does not have ability to pay.
Modification
must show substantial change in circumstances and unanticipated at time of judgment, and address whether it is permanent.
Prenuptial agreement
Generally valid.
Subject to the statute of frauds (writing, signed by both parties).
No consideration is required, other than the marriage.
Will be closely scrutinized for good faith, fraud, undue influence, or duress.
-Can be held invalid if party was not provided reasonable disclosure of assets or
The agreement must be fair in its terms OR must be accompanied by a full disclosure of all assets.
Prenuptial Agreements cannot determine
Uniform Premarital Agreement Act
- spousal support if causes one party to need public assistance
- child support
- custody
Post Nuptial Agreement
Couples are free to enter into contracts after marriage.
-These agreements are generally valid.
-Not automatically subject to the statute of frauds.
HOWEVER, if the statute of frauds applies to the subject matter of the contract (i.e., land), then the statute of frauds will apply.
- Will be closely scrutinized for good faith, fraud, undue influence, or duress.
- Full financial disclosure MUST be given with ALL postnuptial agreements, even if the agreement is fair in its terms.
- right to receive child support cannot be waived
Waiver of right to receive alimony in Post Nuptial Agreement
- may be expressly waived for consideration.
- If no consideration, right to alimony survives
- temporary alimony cannot be waived
What can definitively be waived in a pre or post nuptial agreement
- division of property
- homestead rights
What court has jurisdiction to hear dissolution matters?
Circuit Court and FRCP applies unless otherwise noted.
• Court must have personal jurisdiction in order to enter economic orders such as alimony and property distribution
When can court order counseling
If there is a minor child, or one party denies that the marriage is “irretrievably broken,” court may take steps to encourage reconciliation:
- Order marriage counseling;
- Continue the proceedings for up to 3 months to enable reconciliation; or
- Take other actions that are in the best interest of the parties or minor children of the marriage
Child support
-ends at 18
Exceptions
-child is 19 and still in HS
- child is physically or mentally dependent
How is child support determined?
By reference to statutory guidelines
Can court deviate from guidelines?
Yes, but a departure of more than 5% requires that the court enter written findings and justification for the deviation.
What will court consider in determining whether to order an amount below the guidelines
- extraordinary medical or educational expenses
- child’s age
- parental arrangements for custody
Can a court impute income?
o Court can impute income:
Willful unemployment or underemployment—court computes child support based on earning capacity
Parent fails to provide financial information
But, court does not have to impute income if it finds that party needs to stay home to care for child. And income cannot be imputed to a level a party never earned in the past, or on records over 5 years old.
When is modification of child support available?
-Substantial change in circumstances
What about provisions for medical insurance?
o Must always contain a provision regarding health insurance. Court MUST apportion payment of unreimbursed medical and dental expense.
What MUST be contained in a child support order
- provide for c.s. to terminate on 18th birthday
- provide schedule of payments after one or more children no longer entitled to receive support
- provide specific date for termination or reduction.
Is the proof required to modify an agreement the same as that required to modify a court order?
Yes
Can the court reduce a past due installment of child support?
No
Factors considered in determining a substantial change in circumstance
- financial ability
- compliance with c.s. guidelines
- (must be a 15% or $50 difference between guidelines and past award
- voluntary retirement, among other things
When can a court modify temporary support order?
Upon a showing of good cause.
When can the court refer parties to mediation
In any proceeding in which parental responsibility, time-sharing or support is contested
What can the court do if parent is behind in child support or alimony
- Income deduction order
- can be held in contempt for willful failure
- suspend drivers or professional license for willful failure
- income tax refund may be seized
- 1st degree misdemeanor
- Court-ordered job search
- writ of garnishment (seize property)
- insurance or bond
Central Depository/State Disbursement Unit
Court will order alimony or c.s. payments made into central depository unless there are no minor children or parties agree otherwise.
Over payment of child support
you will be reimbursed, or benefits will be reduced until over payment is repaid
Retroactive child support Florida
The state of Florida allows collection of child support prior to the date your application for child support was filed, between the date of the separation and the time the child support order went into effect. The maximum amount of retroactive child support payments available in the state of Florida is 24 months. This retroactive child support may be made in one lump sum, or in installments.
Primary standard for determining parental responsibility, time-sharing, and support
Best interests of the child
What is the public policy of Florida Re; parental responsibility and time-sharing
- each child has frequent and continuing contact w/both parents
- parents are encouraged to share rights, responsibilities (joint decision making preferred)
What if parent has been convicted of a misdemeanor of the 1st degree or higher involving domestic violence?
Rebuttable presumption of detriment to the child. If not rebutted, time sharing and shared responsibility may not be granted to parent
Parenting Plan
Document that governs relationship between parents and child; must be approved by court.
It contains the time sharing schedule and decision on parental responsibility
-Can only be modified upon a showing of substantial, material and unanticipated change of circumstances and that modification is in the best interests of the child.
What is considered in determining best interests of the child
(i) Physical, mental, emotional health of all parties; (ii)Ability of parent to protect child from ongoing litigation;
(iii) Which parent is willing to allow other parent to have time with the child;
(iv) Wishes of a child
(v) Substance abuse issues,
(vi) if other parent has a new companion;
(vii) division of parental responsibilities;
(viii) moral fitness of parents;
(ix) ability to provide consistent routine;
(x) child abuse, neglect, abandonment
(xi) desirability of continuity
How does age of child affect weight of his choice?
There is no age at which child has absolute choice. The weight that the child’s preference is given sis affected by his age
What can court do if parents fail to agree on plan?
- Appoint parenting coordinator, although they do not have decision-making power
- order social investigation and make decision on parenting plan
Relationship between time sharing and support rights?
Independent of each other
When will sole responsibility for parenting be awarded (court favors shared resposibility)?
If shared parental responsibility would be detrimental to the child.
Court may still award time sharing rights to the other party
-Court may also divide parental responsibility based upon the best interests of the child
Can a parent forfeit time sharing right?
Yes, by engaging in conduct that injures child’s welfare or morals
Military Spouse
In the case of military spouse, court can enter temporary order if spouse is deployed.
Remedies for denial of time sharing
- order parent to pay court costs and attorneys fees
- order parent to attend parenting course
- order community service
- order parent to bear burden of frequent and continuing contact if the parent and child reside more than 60 miles from each other
- modify plan if in child’s best interest
- impose any reasonable sanction
Modification of time sharing and parental responsibility
May not be modified without a showing of substantial, material and unanticipated change of circumstances and a determination that it is in the best interests of the child
Exception to modification rules
A military spouse who is deployed - court will issue a temporary order to modify or amend custody if there is c & c evidence that such modification is in the best interests of the child.
Parenting course
Required before court enters final judgment
Relocation more than 50 miles from that parent’s current residence
Must either:
- obtain written consent of every person entitled to time sharing OR
- serve a petition to relocate
Petition to Relocate and Response
Must include
-mailing address of new place; date of move; reason; written job offer; proposal for revised schedule.
All Caps - objection due in 20 days and relocation will be allowed absent a response
If timely objection is made, no relocation until hearing.
If No Objection w/in 20 days
Presumed that relocation is in best interests of child
Grandparent visitation
s/l/a a parent is fit, parent’s determination must be given special weight. Grandparents can only petition for visitation if parents are dead or one parent is dead and one is in jail for violent offense.
Keeping Children Safe Act
Creates a rebuttable presumption of detriment to the child when: court has found p.c. exists that a parent or child has sexually abused child; guilty plea for charges relating to sexual abuse; or court determines parent is a sexual predator
Uniform Child Custody and Enforcement Act (UCCJEA) - Purpose
the purpose of the act is to resolve jurisdictional disputes with courts of other states in matters re: child custody and visitation and facilitate interstate enforcement.
How do you determine when a Court has jurisdiction to enter or modify a child custody order?
- Home State test.
2. If no home state, significant connection and substantial evidence
Home state
- where child lived with one parent for at least 6 consecutive months immediately before the commencement of the proceeding
- Court can enter (or modify ) under home state rule if state was home state within the six months preceding the filing, but the child is currently absent from the state.
Significant connection and substantial evidence test
If no other state has home state jurisdiction (or declines to exercise home state jurisdiction), state can exercise juris if the child and at least 1 parent have a significant connection with the state and substantial evidence is available in the state.
If all “home states” and substantial evidence states decline to exercise juris, who can exercise juris
Any state.
Exclusive Continuing Jurisdiction under UCCJEA
The court that made initial order has exclusive continuing juris until court determines that neither child nor parents continue to reside in the state AND the child no longer has significant connection to state (so if 1 parent still resides, but he has no relationship with child, no more juris).
When may a court decline Jurisdiction under UCCJEA
Court may decline juris if it determines that it is an inconvenient forum and if another state is the more appropriate forum or if a party has engaged in unjustifiable conduct (wrongfully taking child from state)
Temporary Emergency Jurisdiction under UCCJEA
Court has temporary emergency juris if child has been abandoned or if its necessary to protect child/sibling/parent threatened with mistreatment or abuse
Guardian ad Litem
Guardian ad litems are usually appointed in cases involving significant disputes between parents regarding the well being of the child or children.
What does Fla statute provide e/r/t Guardian ad Litem
The Florida statute provides that the guardian ad litem will act as a “next friend of the child” in court but not as an attorney for the child. The guardian ad litem may investigate any pleadings involving the child. The guardian ad litem may assist the court by helping to obtain any required expert examinations. This could include, but is not limited to, medical doctors, dentists, therapists and psychologists. The guardian ad litem may also request the court provide him or her access to any of those reports. In addition, a guardian ad litem may ask the court, through counsel, to order examinations of other parties involved in an action, such as parents.
The guardian ad litem, through counsel, is entitled to be present and to participate in all depositions, hearings, and other proceedings in the action, and, through counsel, may compel the attendance of witnesses.
Focus of GAL
Best interests of the child. She can tell the court, in a written or oral report.
Immunity for GAL
Presumed to be acting in good faith, and in doing so shall be immune from any liability, civil or criminal
Confidentiality and GAL
Has duty to maintain confidentiality of all information and documents received except in its discretion, in report to court, copied to parties and counsel
Who may adopt
- married couple
- unmarried person
- married person if the other spouse is the parent of the child being adopted, or the failure of the spouse to join petition is excused by the court.
Who must consent to adoption?
-both the minor’s mother and father, or guardian or custodian;
child if 12 or older;
-adoption agency, if there is one involved;
-court of person with custody of minor doesn’t have authority to consent
o Who is a “father”?
(i) the minor was conceived while man was married to mother
(ii) minor is child by adoption
(iii) minor has been determined by a court to be his child
(iv) he has filed an affidavit of paternity in accordance with relevant statute, or is listed on birth certificate before date a petition for termination of parental rights is filed OR
(v) unmarried biological father filed acknowledgment of paternity.
What is an unmarried father presume to know
By engaging in a sexual relationship, he is presumed to know that a pregnancy and adoption proceeding may occur and he has a duty to protect his own rights.
When can an adoptive parent file a petition for adoption
60 days after termination of parental rights. Termination of parental rights must occur furst.
When can an adoptive parent file a petition for adoption
60 days after termination of parental rights. Termination of parental rights must occur prior to adoption
What must unmarried biological father do to protect his rights?
- file a notarized claim of paternity with the Florida Putative Father registry confirming his willingness and intent to support the child.
- Must be filed BEFORE petition to terminate parental rights
If child is placed with adoptive parents six months or younger, dad must perform all of the following acts before mom consents to adoption:
file notarized claim of paternity; in response to notice of intended adoption plan, file an affidavit stating his willingness to take resp for the child and agreeing to court order of child support, AND if he knew of pregnancy, he paid reasonable living and medical expenses (need promise plus acts evidencing intent).
If child is over six months when he is placed with adoptive parents, what must unmarried father have done
he must have developed substantial relationship with child, maintained regular communication and provided reasonable, regular financial support. Living with child and holding himself out as dad for at least 6 months in preceding 1 year period = substantial relationship.
When is consent of unmarried bio dad no longer required
Adoption agency must serve notice of intended adoption plan on any unmarried bio father and file it with proof of service. If dad fails to respond within 30 days after service, his consent is no longer required.
Is notice and consent req’d when child is conceived as a result of a violation of the criminal law?
No
When is unmarried bio dad exempt from time limitations for claim of paterninty?
- Mom identifies him to adoption agency
- if he is served with notice of adoption and 30 day response date is later than the date of the filing of the petition for termination of parental rights.
How must a Consent to adoption or affidavit of nonpaternity be executed?
- in presence of court or by affidavit, signed in the presence of 2 witnesses and acknowledged before a notary public who is NOT signing as one of the W’s
- Notary must indicate the DATE and TIME of execution
When is mom not allowed to execute consent to adoption
for the first 48 hours after birth
Waiting period for consent if minor is over 6 months
Consent is subject to a three day revocation period.
Abandonment during pregnancy
Pre birth conduct of parent is relevant and admissible as evidence that a parent has abandoned his child so that parent’s consent is not required.
Eg. father’s commission of a violent offense tthat lands him in jail for a substantial period of child’s minority
Abandonment By Incarceration
Incarcerated parent is deemed to have abandoned his child if:
- period of incarceration will constitute a significant portion of child’s life before turning 18;
- violent or habitual criminal, sexual predator, convicted of child abuse, sexual battery;
- court determines by c & C evidence that continuing relationship would beharmful to child/
When is a judgment terminating parental rights voidable?
- when based on false information that prevent unmarried dad from meeting his responsibilities
- Excusable Neglect
Excusable Neglect
if judgment based on default for failure to appear, party seeking to vacate default must:
- act with due diligence
- demonstrate excusable neglect
- demonstrate the existence of a meritorious defense
Paternity after divorce proceedings
o A final judgment of dissolution of marriage that establishes a child support obligation for a former husband is a final determination of paternity. Any subsequent challenge must be brought under FRCP - -mistake, newly discovered evidence, fraud – all within one year.
Determining residential custody
Key word is stable home Factors -parent's ability to provide stable home -child's preference -parent's willingness to allow time sharing and foster an ongoing relationship with the other parent.
Parental Immunity
Personal torts between parents and child are only permitted to the extent of insurance coverage. Intentional torts not limited. No immunity regarding other relatives.
-No immunity for crimes
