Family Law Flashcards
Prenuptial Agreement
- A K entered into by two ppl who plan to marry
B. Validity Requirements
1. Agreement must be in writing (SOF)
2. Agreement must have been voluntary
1. look at facts, ie: for coercion, time pressure (asking to sign as about to walk down aisle), one party has counsel other doesn’t, disparity in business experience of two parties, understanding of rights being forfeited,
3. Unconscionability plus (Full disclosure)
- challenging party has to say grossly unfair and all of the following conditions must be
met
- no disclosure of assets
- no waiver of disclosure and
- no independent knowledge of other parties wealth
Can waive alimony but not CS
Postnuptial Agreement
Agreement voluntarily and mutually enter into while married
validity
- voluntary (no duress/undue influence)
- opportunity to see independent counsel
- relationship imbalance of power (does one spouse have greater leverage)
- if waived rights received full financial disclosure
How to End a marriage
Annulment (something went wrong before the marriage took place that renders the marriage void or voidable)
divorce: arises after the marriage. historically based on marital misconduct
Dissolution of marriage
no fault in Fl. the marriage has been irretrievably broken
cannot get divorced if spouse is mentally incompetent. They must be adjudicated mentally incompetent for 3 consecutive years otherwise judge cannot proceed
Jurisdiction and Venue
J: circuit court
State has SMJ is spouse domiciled for last 6 months
State has PJ over collateral or economic remedies
Venue: any county where
spouse lives
grounds arose
last resided as couple
Equitable Distribution
- ** A. Property Division/ Equitable Distribution
Step 1: categorize all of the assets owned by the couple
1. Spouse A property
2. Spouse B property
3. Marital Property
Presumption 50/50
Non-Marital Assets - anything owned prior to the date of the marriage
- anything acquired during the marriage as a gift or inheritance by one spouse in his or
her sole name - any income thrown off by the two above categories
- any pain and suffering of a tort judgment recovered by one spouse
- can own property if in name solely even if purchased during marriage as long as no commingling of marital funds
Marital Property
- is marital regardless of who owned the money and whose name is on the item
- Anything into possession after say I Do becomes marital
- **Includes appreciation in value on the non-marital assets that is due to the affirmative
- If you expend marital assets on a separate property asset and it enhances the value that appreciation is also a marital asset
Factors for Unequal Distribution
- economic circumstances of two spouses (education, wages, employment prospects) -
-Duration of marriage - Which spouse will be custodial parent (takes care of children)
- Spouse engaged in waste or depletion of marital assets (extravigant, gambling, etc.) - Contributions each made to the marriage
- martial contributions (homemaker, raising kids)
- Judge can divide assets in kind (allocate assets 1 by 1)
- Judge can order one party to pay the other a cash award (instead of saying give this house,
this boat, etc. just write a check)
Attorney Fees
can petition court to have other party pay
court looks at ability of nonpetittioning spouse to pay and petitioning spouses need
Homestead
- primary principle residence of owner
a married homestead owner along with spouse may transfer title by deed to an estate by the entirety. In absence of consent of both spouses the transfer is void. So while H+W are married neither can transfer the title of their marital home without the others consent
Divorce terminates a tenants by entirety and a tenancy in common results. Where each tenant has a right to possess the whole and can transfer his/her interest in property
homestead can be lost if abandon property
Alimony
- people in a marriage owe each other a reciprocal marriage support. Alimony is a continuation of this support
- can be waived by agreement (prenup or negotiations leading up to divorce)
Types of Alimony
1. Alimony Pendente Lite (APL) - temporary alimony while the litigation is pending
- its to preserve the status quo
- on exam “Mary is concerned how she will support herself while divorce case is pending”
- Alimony After Final Judgment
A. Bridge the Gap Alimony
- assist from married back to single life
- can last for a maximum of 2 years
- will terminate early if on death of party or remarriage of recipient - cant be modified
B. Rehabilitative Alimony
- obtain training or education to become self supporting
- awards must be apportioned with a specific plan
- can be modified
- can be terminated if substantial change in circumstances (drop out, failed,)
C. Permanent Alimony
- open ended for ongoing needs to recipient - durational periods - Short Term Marriage (less than 7 years)
- awarded only if court finds for exceptional circumstances - Moderate Term Marriage (7 or more years but less than 17)
- judge must have a finding made on clear and convincing evidence that alimony is appropriate based on list of statutory factors - Long Term Marriage (17 or more years) -judge has discretion
- can be modified
- terminates on death of party or recipient marries
- recipient who engages in a relationship can terminate alimony (Supportive
Relationship)
D. Durational Alimony
- if permanent alimony is inappropriate, can ask for durational - only for short or moderate term marriages
- durational limit is no longer than the length of the marriage
lump sum
- made when fit, equitable and just
- its a specific sum
- can order to pay in installments over set period or one lump sum
- unless agreed otherwise payments do NOT terminate upon death or remarriage
Factors to Consider for Alimony
- standard of living during the marriage
- Duration of marriage
- Age, physical, mental capacity of person
- Education
- contributions in marriage (allowing other to get an education or training for suitable employment, homemaker, raising children)
Paternity
- issue is with identity of father
- if a women is married when she has a baby there is a presumption that the husband is the father. Includes within 285 days (9 months plus 15 days) after marriage
- it is a reputable presumption
- an unmarried women that has a child is labeled illagitamate child or non-marital child - identity of father of unmarried women can
- step forward and voluntarily acknowledge as dad
Paternity Suit - commenced by non-marital child through guardian or by mother - filed within 4 years after the child reaches the age of majority
- only get child support from after awarded in litigation
- court has power to order DNA
- paternity is important for governmental benefits, rights of inheritance, rights of access to child, and obligation to pay child support
Child Support
B. Child Support
- obligation that is owed by both biological parents to their children that continues until child turns 18 or graduates from high school or turns 19
- a child with a disability your obligations continues throughout Childs life
- in FL no obligation to pay for college education
- normally only subject when parent doesn’t live in same home as child (can be in a paternity case or divorce)
Amount of Child Support
- child support guidelines
- mandated by federal government
- FL based on income and number of kids - Calculation of parents income
**- willfully underemployed the calculation will be based on earning capacity not actually monthly income
- a parent can obligate themselves to pay more than the guideline amount or longer than the required time period (choose to support till 25)
- courts can depart from guidelines, but if depart more than 5% need to make findings of fact for justification of doing so
- special needs of child
- Seasonal variation in income
- Childs age (kid could have a job)
- Total assets of both parents
- Income of both parents
- court must take into account if child spending significant time with noncustodial parent - A court should not disregard the guideline amount when the parent has additional
subsequent kids with a new partner. Court will consider income of other parent 6 of 8
Factors Effecting Child Support (use whats in problem)
Modifications
- child support can be modified
- have to show a substantial change in circumstances (financial, fired, promotion, economic circumstances, Childs circumstances can change
- are prospective only
- arrears cannot be modified (back payments)
Parental Responsibility (Custody)
- develop a Parenting Plan
- Addresses residence of child and legal responsibility
- One parent can be given primary responsibility or shared
- Court is instructed to lean toward shared parental responsibility unless it finds it would be
detrimental to child (presumption = shared) - Court needs to consider the BEST INTEREST OF THE CHILD
BIOC Factors (use what applies to facts) - age of child
- primary caretaker
- Health: physical and mental of children and both parents
-moral fitness - Which parent is more likely to accommodate the other parent for visitation - Older child= look to wishes of child
- Sustenance abuse of parents
- Criminal conduct of parents
- If arrangement will allow to stay closer to family/siblings
Mention physical and legal custody
in Fl presumption custody is shared 50/50 as preferential for both parents to be invovled
Jurisdiction
Jurisdiction to decide custody issues over the child
- when multiple states involved look to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- This tells us that the state that adjudicated custody first is the home state of the child or any state that was the home state within the last 6 months
- Home state defined as where lived with parent for at least 6 months
- Once have valid UCCJEA with state then no other state can modify so long as kid and
parent continues to live there
