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FL Topics > Family Law > Flashcards

Family Law Flashcards

1
Q

Before addressing distribution of children and assets, must first establish whether parties are able to ___

A

Divorce (aka dissolve the marriage)

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2
Q

In FL, we have “_________” divorce, meaning that there you do not need allegations of _______ or ________, etc.

A

In FL, we have “NO-FAULT” divorce, meaning that there you do not need allegations of INFIDELITY or LACK OF CONSUMMATION, etc.

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3
Q

FL courts terminate “______ marriages” meaning that: (1) there must be an allegation that the marriage is “________ ________” and the allegation can be unilateral; OR (2) a party has been adjudicated _________ for at least 3 years.

A

FL courts terminate “DEAD marriages” meaning that: (1) there must be an allegation that the marriage is “IRRETRIEVABLY BROKEN” and the allegation can be unilateral; OR (2) a party has been adjudicated INCOMPETENT for at least 3 years.

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4
Q

If there is a minor child or if one party denies that the marriage is “irretrievably broken” the court may take steps to encourage ___________

A

Reconciliation

court doesnt have to do this but they can order it if they want

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5
Q

Reconciliation - 3 options:

A

1) order marriage counseling
2) continue/pause the proceedings for up to 3 months to enable reconciliation, or
3) take other actions that are in the best interest of the parties or minor children of the marriage

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6
Q

Does infidelity matter in determining the division of property or award of alimony?

A

Infidelity ALONE is NOT a factor in the determination. However, if an unfaithful spouse expended marital assets in furtherance of an affair, the court will probably consider that when dividing property.

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7
Q

After you establish that parties can divorce, the next task is ______ ______ of ___________.

A

Equitable distribution of property

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8
Q

For equitable distribution of property, courts must strive for _________ UNLESS the court believes there is ___________ for unequal treatment.

A

For equitable distribution of property, courts must strive for EQUALITY, unless the court believes there is JUSTIFICATION for unequal treatment.

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9
Q

In Florida, only ________ _________ are subject to division of property.

A

In Florida, only MARITAL ASSETS are subject to division of property.

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10
Q

Name the 4 types of marital assets - exhaustive list, only these things are marital assets

A

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 nonmartial assets as a result of the efforts of the other spouse or the expenditure of martial funds
3) Interspousal gifts DURING the marriage - gifts btwn spouses can be returned to the giver after divorce
4) Any retirement assets accrued during the marriage - NOT ones accrued prior to marriage

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11
Q

What is a non-martial asset?

A

(1) Assets acquired before the marriage by each individual spouse and (2) assets gifted or devised to an individual spouse during the marriage by a third party

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12
Q

If __________ ___________, use of the martial home is often given to the parent who will be the __________ _____________ for the children to promote a stable home environment.

A

If FINANCIALLY POSSIBLE, use of the martial home is often given to the parent who will be the PRIMARY CAREGIVER for the children to promote a stable home environment.

  • pay attention to whether it is financially possible
  • *Use doesn’t necessarily mean that person gets to own the house
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13
Q

Can assets change status? When?

A

Yes, a non-martial assets can become a marital asset in certain circumstances. Ex: commingling non-martial assets w/ marital assets, but depends on intention, how it was done, etc.

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14
Q

Name the 7 factors a judge would consider when dividing marital property:

A

1) Contribution to the marriage
2) Contribution to care and education of children
3) Services of the homemaker
4) Economic circumstances
5) Duration of the marriage
6) Career and education sacrifices; and
7) Desirability of retaining asset free from hostile interference from other spouse (if asset cannot be shared and cant give it to both parties, will give it to one or sell it and split $)

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15
Q

Alimony

A

Money paid from one spouse to the other over duration of the divorce/after separation.

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16
Q

Alimony is available to _____ ________.

A

Either spouse - either one can be compelled to pay the other spouse

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17
Q

The main consideration for alimony is _________ vs. ________ ____ _________.

A

Need vs. Ability to Pay

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18
Q

Alimony should NOT cause the payor to have less ______ __________ than the payee

A

Net income

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19
Q

Name the types of alimony:

Pabst Blue Ribbon Divorce Party

A 
Pendente Lite
Bridge-the-gap
Rehabilitative
Durational
Permanent
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20
Q

Pendente lite (temporary alimony)

A

Covers immediate living expenses and costs DURING the dissolution proceedings. Always available if there is NEED by one spouse and ABILITY TO PAY by the other.

  • only consider need vs ability
  • easiest to get but only lasts during proceedings
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21
Q

Bridge-the-gap alimony

A

Assists one spouse (who has a financial need) in the TRANSITION from being married to being single. Has a maximum duration of 2 years and once the order is entered, it CANNOT be modified in amount or duration.

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22
Q

Rehabilitative Alimony

A

Assists one spouse in obtaining EDUCATION OR TRAINING necessary to become self-sufficient. There MUST be a specific Rehabilitative Plan. The award CAN be modified or terminated if there is: (1) change in circumstances; (2) noncompliance with the rehabilitative plan; or (3) completion of rehabilitative plan.

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23
Q

Bridge-the-gap alimony has a maximum duration of ______ years.

A

2 years

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24
Q

T/F: Bridge-the-gap alimony cannot be modified in amount or duration once the order is entered.

A

True. It’s basically unchangeable.

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25
Q

T/F: For rehabilitative alimony, a rehabilitative plan is optional.

A

False. There MUST be a specific Rehabilitative Plan. Basically a plan for schooling/how to get a degree.

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26
Q

Under what circumstances may a rehabilitative alimony award be modified or termianted?

A

The award CAN be modified or terminated if there is: (1) change in circumstances; (2) noncompliance with the rehabilitative plan; or (3) completion of rehabilitative plan.

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27
Q

Durational Alimony

A

Economic assistance for a set period of time. Awarded when permanent alimony is not appropriate. The duration of the alimony cannot exceed the duration of the marriage. The AMOUNT of the award MAY be modified or terminated if there is a SUBSTANTIAL CHANGE in circumstances, but the LENGTH of the award CANNOT be modified, unless there are EXCEPTIONAL circumstances.
- no real purpose, just $ for a set amount of time

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28
Q

May an award of durational alimony be modified or terminated?

A

The AMOUNT of the award MAY be modified or terminated if there is a SUBSTANTIAL CHANGE in circumstances, but the LENGTH of the award CANNOT be modified, unless there are EXCEPTIONAL circumstances.

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29
Q

What is the maximum duration for an award of durational alimony?

A

The duration of the alimony cannot exceed the duration of the marriage.

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30
Q

Permanent Alimony

A

Awarded if a spouse lacks financial ability to be self-sustaining. Ex: spouse really old or cannot work.

  • Marriage of long duration: awarded if appropriate upon CONSIDERATION of the statutory factors.
  • Marriage of moderate duration: awarded if appropriate upon CLEAR & CONVINCING EVIDENCE of need based upon the statutory factors.
  • Marriage of short duration: 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.
Award may be modified or terminated upon SUBSTANTIAL CHANGE in circumstances.

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31
Q

When may an award of permanent alimony be modified or terminated?

A

Award may be modified or terminated upon SUBSTANTIAL CHANGE in circumstances.

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32
Q

When would a court award permanent alimony for a marriage of long/moderate/short duration?

A
  • Marriage of long duration: awarded if appropriate upon CONSIDERATION of the statutory factors.
  • Marriage of moderate duration: awarded if appropriate upon CLEAR & CONVINCING EVIDENCE of need based upon the statutory factors.
  • Marriage of short duration: there must be written findings of EXCEPTIONAL circumstances.
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33
Q

Name the statutory factors the court considers when deciding whether to award durational or permanent alimony:
SAD FRET ME

A

Standard of living during the marriage
Age/emotional/physical condition of both parties
Duration of the marriage

Financial resources and sources of income
Responsibilities for minor children
Earning capacities (and time needed to obtain education/training)
Tax treatment

Martial contribution (especially for permanent...want to see investment into marriage by spouse seeking alimony)
Equity
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34
Q

Length of short term marriage?

A

Less than 7 years

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35
Q

Length of moderate term marriage?

A

More than 7 years but less than 17 years

36
Q

Length of long term marriage?

A

17 years or longer

37
Q

Attorney’s fees can be awarded based on the same consideration as _____ ______: _______ vs. ______ _____ ______.

A

Attorney’s fees can be awarded based on the same consideration as PENDENTE LITE: NEED VS ABILITY TO PAY

NOT a form of alimony but usually analyzed when analyzing pendente lite b/c they almost always go together

38
Q

Can you do a combo of different alimonies?

A

Yes. Except for permanent alimony, which could possibly only go w/ pendente lite.

39
Q

Shared parental responsibility is another name for:

A

Child custody

40
Q

“____ ___ of the ___” is the primary standard for all matters related to parenting, time-sharing, and support.

A

Best interests of the child

41
Q

Factors that courts consider when determining time-sharing:

A

1) parent’s ability to provide a stable home environment
2) child’s preference (especially older children)
3) parent’s willingness to allow and facilitate time-sharing (will give child to parent who cooperates w/ plan and doesn’t interfere w/ time sharing)

42
Q

Whenever possible the court wants _______ parents to be involved in raising the child.

A

Whenever possible the court wants BOTH parents to be involved in raising the child.

43
Q

There is _______ automatic preference for giving primary custody to the mother or father.

A

There is NO automatic preference for giving primary custody to the mother or father.

44
Q

A parent may _______ the right to shared parental responsibility by engaging in conduct that __________ ________ the child’s ______ or _______.

A

A parent may FORFEIT the right to shared parental responsibility by engaging in conduct that INJURIOUSLY AFFECTS the child’s WELFARE or MORALS.
Ex: substance abuse, abuse, neglect, etc.

45
Q

It is _____ that a parent will have no right to shared responsibility.

A

It is RARE that a parent will have no right to shared responsibility.
They will get limited rights.

46
Q

The ________ ________ will describe how the parents will share responsibility for daily tasks with the child. This includes: (1)_____, (2) _______, (3)_______.

A

The PARENTING PLAN will describe how the parents will share responsibility for daily tasks with the child. This includes:

1) Time sharing - liberal for non-primary caregiver
2) Designation of who will be responsible for healthcare, school-related matters, etc. - who will make the decision?
3) Methods that parents will use to communicate with the child - how? how long? when? supervised?

47
Q

Shared parental responsibility may place restrictions on a parent’s ability to relocate with a child. What are the 3 main issues to focus on?

A

1) What happens if there is a risk that one parent will flee out of the state with the child?
2) can a parent relocate their permanent residence, if it will impact child custody?
3) which court has jurisdiction if one parent relocates to another region?

48
Q

If the court believes there is a risk that one parent will remove a child from the state, the court can impose restrictions on travel. For example, the court can…

A

1) Require notarized written permission of both parents to remove the child from the state.
2) Require a parent to surrender the child’s passport.
3) Require a party to post a bond or other security - forfeited if party kidnaps child

49
Q

A custodial parent may relocate up to ____ miles miles from their current residence, without violating shared parental responsibility.

A

49 miles - This is based purely on geographical distance. It might be within the state of Florida, or across a state border.

50
Q

If a parent wishes to relocate 50 miles or more, the parent must either: (1) _____ or (2)________.

A

(1) Obtain written consent of every person entitled to time-sharing, OR (2) Serve a petition to relocate on every person entitled to time-sharing, including details about the move (date, location, reason, etc.) and a proposed revised plan for time-sharing and transportation. The other parent must object in writing within 20 days after service, or it is presumed that the move is in the best interest of the child.

51
Q

T/F: There is no presumption in favor or against the request to relocate – the standard is best interest of the child, even if time-sharing will be substantially modified.

A

True.

52
Q

What 6 factors does a court consider when a parent wants to relocate their principal residence?

A

1) Involvement and relationship with parents, sibilings, and others, and the feasibility of preserving those relationships.
2) Child’s age, needs, and likely impact of relocation
3) Employment and economic circumstances of parents, and whether relocation will enhance the parent and child’s quality of life.
4) Reasons for seeking/opposing relocation.
5) Whether the parent is seeking relocation in good faith, and whether objecting parent has been compliant in the past.
6) History of substance abuse or domestic violence.

53
Q

T/F: Florida has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

A

True

54
Q

T/F: The UCCJEA is implicated when a custodial parent leaves the state of Florida with a minor child and seeks to enter or modify a parenting plan in a different court.

A

True

55
Q

T/F: Under the UCCJEA, the court that issued the original shared parental responsibility orders will retain jurisdiction and a parent seeking to modify the order must go to the original court unless the court agrees to transfer jurisdiction.

A

True

56
Q

Generally, the ____________ parent must pay child support to the ___________parent for the __________ of the child.

A

Generally, the NON-CUSTODIAL parent must pay child support to the CUSTODIAL parent for the BENEFIT of the child.

57
Q

Child support _______ be waived in a martial agreement.

A

Child support CANNOT be waived in a martial agreement.

58
Q

Child support ends when the child turns ____, unless the child is _____ or ______ _________, or the child is _____ and still in _______ ________.

A

Child support ends when the child turns 18, unless the child is MENTALLY OR PHYSICALLY DEPENDENT or the child is 19 and still in HIGH SCHOOL.

59
Q

Child support is governed by _____. The court will refer to a _______ ___________ and perform the applicable calculation based on _____ and _______. Departure from the guidelines by more than ___% requires written findings and justification. A deviation from the statutory scale may be warranted if there are ______ circumstances.

A

Child support is governed by STATUTE. The court will refer to a STATUTORY SCALE and perform the applicable calculation based on INCOME and NEED. Departure from the guidelines by more than 5% requires written findings and justification. A deviation from the statutory scale may be warranted if there are EXTRAORDINARY circumstances.

60
Q

Premarital agreements are also known as…

A

Prenuptial agreement, prenup, or antenuptial agreement

61
Q

Premarital agreements determine what happens in event of ____ or _____.

A

Premarital agreements determine what happens in event of DIVORCE OR DEATH

62
Q

Premarital agreements are generally ______

A

Premarital agreements are generally VALID

63
Q

Premarital agreements are always subject to the _______ ___ ___________

A

Premarital agreements are always subject to the STATUTE OF FRAUDS

64
Q

Is consideration required for premarital agreements?

A

No consideration is required, other than the marriage.

65
Q

Premarital agreements will be closely scrutinized for what 5 things?

A

Will be closely scrutinized for bad faith, fraud, duress, coercion, or overreaching.

66
Q

_________ agreements can be entered into at any time after the marriage, and might also be created as part of the couple’s preparations for divorce (e.g., a marriage settlement agreement).

A

POSTNUPTIAL agreements can be entered into at any time after the marriage, and might also be created as part of the couple’s preparations for divorce (e.g., a marriage settlement agreement).
-generally valid

67
Q

Postnuptial agreements are _________ automatically subject to the statute of frauds. However, if the statute of frauds applies to the _________ _________ of the contract (i.e., land), then the statute of frauds will apply.

A

Postnuptial agreements are 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.

68
Q

Postnuptial agreements will be closely scrutinized for what 5 things?

A

Will be closely scrutinized for bad faith, fraud, duress, coercion, or overreaching.

69
Q

What 3 things CAN be waived/modified in a marital agreement?

A

(1) Division of property; (2) Inheritance; (3) Homestead rights

70
Q

What 3 things CANNOT be waived/modified in a marital agreement?

A

(1) Shared parental responsibility: marital agreement has no effect; (2) Child support: marital agreement has no effect; (3) Alimony: Marital agreement may be considered, but is not conclusive. The court can evaluate the circumstances based on the considerations above and can ignore the agreement if it thinks alimony is appropriate.

71
Q

If one spouse is arguing that the martial agreement is invalid and should not be enforced because of Bad Faith, what facts should you look for in the hypo?

A

Bad faith: Look for one spouse trying to minimize the significance of the agreement, or discourage the other spouse from seeking counsel

72
Q

If one spouse is arguing that the martial agreement is invalid and should not be enforced because of Fraud, what facts should you look for in the hypo?

A

Fraud: Look for lies and falsified information

73
Q

If one spouse is arguing that the martial agreement is invalid and should not be enforced because of Duress/Coercion, what facts should you look for in the hypo?

A

Duress/Coercion: Look for pressure situations, threats, and pre-nups given at the last minute.

74
Q

If one spouse is arguing that the martial agreement is invalid and should not be enforced because of Overreaching, what facts should you look for in the hypo?

A

Overreaching: Look for a large gap in age, education, or experience between the spouses, which leads one spouse to take advantage. Look for spouses who are ill or incapacitated.

75
Q

If a antenuptial marital agreement purports to alter a spouse’s inheritance (from a will, intestacy, trust, homestead, etc.), what kind of financial disclosure is required by the other spouse in order for the agreement to be valid?

A

Antenuptial agreement (signed before marriage): No financial disclosure is required for the provision to be valid.

-parties are operating @ arms-length

76
Q

If a postnuptial marital agreement purports to alter a spouse’s inheritance (from a will, intestacy, trust, homestead, etc.), what kind of financial disclosure is required by the other spouse in order for the agreement to be valid?

A

Postnuptial agreement (signed after marriage): Fair financial disclosure is required, or the provision is invalid.

  • Fair doesn’t necessarily mean full
  • spouses operating as a couple
77
Q

If the marital agreement (pre or post) purports to alter a spouse’s rights to assets and income upon divorce (such as alimony, equitable distribution, etc.), the provision will be voided where: the agreement was ___________ when it was executed AND before execution of the agreement, the party disputing the agreement: (1) ___, (2) ___, AND (3) ____.

A

If the marital agreement (pre or post) purports to alter a spouse’s rights to assets and income upon divorce (such as alimony, equitable distribution, etc.), the provision will be voided where: the agreement was UNCONSCIONABLE when it was executed AND before execution of the agreement, the party disputing the agreement: (1) did not receive a fair and reasonable disclosure of the wealthier spouse’s assets, (2) did not waive the right to receive such disclosure (in writing), AND (3) did not already have an adequate knowledge of the wealthier spouse’s assets from other sources (and could not reasonably have been expected to have it).

78
Q

Prior to granting an adoption, the court must terminate parental rights after a full evidentiary hearing in which court determines by _____ ____ ___________ evidence that each person whose consent to adoption is required has done what? (6 options)

A

Prior to granting an adoption, the court must terminate parental rights after a full evidentiary hearing in which court determines by CLEAR AND CONVINCING evidence that each person whose consent to adoption is required:

(i) has consented to the adoption;
(ii) has executed an affidavit of non-paternity;
(iii) has been served notice of the intended adoption plan but has failed to file a written answer or appear at a hearing;
(iv) has abandoned the minor;
(v) has been judicially declared incapacitated; OR
(vi) is unreasonably withholding consent to the adoption

79
Q

Adoption creates a legal relationship that declares what?

A

Adoption creates a legal relationship declaring that the person is legally the child of the adoptive parents for every purpose

80
Q

T/F: The adopted child is entitled to all rights and subject to all obligations as if she was born to the parents in lawful wedlock. This includes inheritance rights.

A

True

81
Q

T/F: Florida recognizes adoptions from other jurisdictions as long as they were issued pursuant to due process of law.

A

True

82
Q

Who may be adopted?

A

Any person, minor or adult, may be adopted.

83
Q

Who may be an adoptive parent?

A

A married couple, a married individual, or an unmarried adult. Persons with a disability may adopt unless the disability renders the person incapable of serving as an effective parent.

84
Q

How many days after the Termination of the Parental Rights may the adoptive parents file a petition for adoption in circuit court?

A

60 days

85
Q

A petition for adoption will include the child’s prospective _________ ______.

A

A petition for adoption will include the child’s prospective ADOPTIVE NAME

86
Q

The Department of Children and Families (DCF) must complete and file a report as to ______________ of the prospective adoptive home.

A

The Department of Children and Families (DCF) must complete and file a report as to SUITABILITY of the prospective adoptive home.

FL Topics (9 decks)

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