Family Law (Grossman)

Question 1

Family Law Essay Structure

Answer 1

1) Prenup / Postnup

2) Divorce (legal standard + jurisdiction)

3) Marital vs Non-Marital Property

4) Equitable Distribution

5) Duration of Marriage

6) Types of Alimony

7) Factors for Awards of Alimony

8) Custody (best interests of child, shared parental response., parenting plan)

9) UCCJEA / Relocation

10) Modification

11) Child Support

12) Adoption

Question 2

Prenuptial Agreement

Answer 2

1) Must be in writing (SOF);

2) Entered into voluntarily (no fraud or duress);

3) Each party must have their own counsel;

4) Each party must have sufficient time to review / understand;

5) There must be full disclosure between the parties of the assets; and

6) The agreement cannot determine child support or spousal support.

Question 3

Postnuptial Agreement

Answer 3

1) Postnup doesn’t have to be in writing unless land is involved or anything else that is needed to satisfy the SOF;

2) Alimony may be waived (but not temporary alimony);

3) Must be entered into voluntarily (no fraud or duress); and

4) Each party must have their own counsel with full disclosure.

Question 4

Legal Standard for Granting a Divorce

Answer 4

-FL is a “no-fault” jurisdiction

-Two standards for granting a divorce:

1) The marriage is “irretrievably broken” (while the court could order counseling, the court can’t force people to participate in it); OR

2) Mental incapacity of a spouse for the last 3 years.

-NOTE: Misconduct is NOT relevant for the standard for granting a divorce. However, it could be a factor for granting alimony.

Question 5

When does a FL court have jurisdiction to grant a divorce?

Answer 5

The court will have jurisdiction to grant a divorce if the petitioner resided in FL for 6 MONTHS prior to the filing.

Question 6

Non-Marital Assets

Answer 6

Property acquired prior to the marriage and kept separate.

Question 7

Marital Assets

Answer 7

Property acquired by either spouse or both spouses during the marriage.

Includes:
-Benefits accrued during the marriage (i.e., retirement, pension, etc.)
-Any accounts accruing during the marriage
-Enhancement and/or appreciation of a non-marital asset through the effort of a spouse or contribution of a spouse

NOTE: Marital assets are subject to EQUITABLE DISTRIBUTION.

Question 8

Equitable Distribution

Answer 8

The presumption by the court is a 50-50 split of marital assets, but based on certain factors this may deviate.

Factors include:
1) Each spouse’s contribution during the marriage;
2) The duration of the marriage;
3) Economic circumstances of the spouses;
4) Sacrifices for career / education.

-NOTE: This is the standard of distribution of marital assets in FL.

Question 9

Duration of Marriage

Answer 9

1) Short-Term Marriage: Any marriage less than 10 years.

2) Moderate-Term Marriage: 10-20 years.

3) Long-Term Marriage: Longer than 20 years.

-NOTE: This can be a factor for equitable distribution and for the kinds of alimony a spouse may get.

Question 10

How long is a Short-Term Marriage?

Answer 10

Any marriage less than 10 years.

Question 11

How long is a Moderate-Term Marriage?

Answer 11

10-20 years.

Question 12

How long is a Long-Term Marriage?

Answer 12

Longer than 20 years.

Question 13

Pendente Lite

Answer 13

-AKA suit money

-This is money that a spouse gives another spouse as support to get them through the actual divorce proceeding

-This is generally always awarded

Question 14

Bridge the Gap Alimony

Answer 14

This is for the short-term to help the transition for 1 spouse to become single.

-May not exceed 2 years

-NOT modifiable

-Generally always given

Question 15

Rehabilitative Alimony

Answer 15

This is given to the spouse to provide for any necessary education, training, work experience, etc., in order for that spouse to become self-sufficient.

-This is only given for a set period of time.

Question 16

Durational Alimony

Answer 16

This is for short to long-term marriages.

-It’s for a set period of time

-NOT AVAILABLE for marriages of less than 3 years

Rules:

1) May not exceed 50% of length of a SHORT TERM MARRIAGE

2) May not exceed 60% of length of a MODERATE TERM MARRIAGE

3) May not exceed 75% of length of a LONG TERM MARRIAGE

**If EXCEPTIONAL CIRCUMSTANCES the court may extend the term of alimony if there’s CLEAR AND CONVINCING EVIDENCE that it’s necessary.

Question 17

Types of Alimony

Answer 17

1) Pendente Lite (suit money): $ one spouse gives the other during the actual divorce proceeding

2) Bridge the Gap Alimony: short-term to help the transition for one spouse to become single; may not exceed 2 years and is NOT modifiable

3) Rehabilitative Alimony: given to provide for a necessary education, training, etc., to enable a spouse to become self-sufficient; only for a set period of time

4) Durational Alimony: for short to long-term marriages (NOT AVAILABLE for marriages of less than 3 years)

NOTE: Permanent Alimony has been ELIMINATED in FL.

Question 18

Factors for determining alimony

Answer 18

1) Need and ability to pay

2) Ages of spouses

3) Mental and physical and emotional health of the spouses

4) Earnings of the spouses

5) Caretaker of children

6) Misconduct (including adultery)

Question 19

Custody (standard)

Answer 19

Standard: Best interests of the child =

1) Shared Parental Responsibility (i.e., the legal decision-making on behalf of the children; the presumption is that both parents should be involved); PLUS

2) Parenting Plan - this is a document submitted to the court that delineates where the kids will be day-to-day; week-to-week; for summer vacations; holidays, etc. (so there’s a consistent plan moving forward which helps the best interest of the child)

Question 20

Shared Parental Responsibility

Answer 20

There is a presumption in determining custody of the child that both parents should be involved in the legal decision-making on behalf of the child.

-This includes decisions such as school and religion

-Subject to the best interests of the child

-Matter of public policy

Question 21

Parenting Plan

Answer 21

This is a document submitted to the court which delineates where the kid will be day-to-day; week-to-week; for summer vacations; holidays, etc.

-This way there’s a consistent plan moving forward w/o the need for the court to always be involved

-Supposed to help the best interest of the child

Question 22

Factors for Determining Shared Parental Responsibility and the Parenting Plan

Answer 22

1) Age of the children;

2) Where each parent is going to live;

3) Where are the families (e.g., grandparents) going to live;

4) Where do the children go to school;

5) Child preference of where he/she wants to live (if old enough to express this to the court);

6) Where the child is comfortable, established, has friends.

Question 23

Relocation of Child

Answer 23

If moving a child more than 50 miles away from the principal residence you need the consent of the other parent.

-The burden is on the moving parent to show that the relocation is in the best interest of the child; if the moving parent satisfies this burden, then it shifts to the other parent to show why it’s not.

-Less than 50 miles don’t need consent from other parent.

Question 24

What does the UCCJEA stand for?

Answer 24

The Uniform Child Custody Jurisdiction Enforcement Act.

Question 25

When does the UCCJEA apply?

Answer 25

It applies in a hypo where there’s multiple states involved

-Says that for the best interests of the child, only 1 state should have jurisdiction to hear any problems that arise during the proceeding and moving forward

-In FL, the Circuit Court has jurisdiction.

-The jurisdiction will be the child’s home state (i.e., their permanent residence) and/or where the child has resided for the last 6 months.

Question 26

Modification

Answer 26

Most of the issues relating to alimony and child custody can be modified (EXCEPT FOR BRIDGE THE GAP ALIMONY)

-Must argue “there’s a substantial, material and unanticipated change of circumstances”

Question 27

Adoption

Answer 27

Adults can legally adopt children or other adults (anyone can adopt)

-Look to the fitness of the parent to provide a safe environment for the child (a background check is done on the parents)

-Adoptive Placement: Child is placed w/ adoptive parents for 6 months and then the State will confirm everything is ok; then a petition is made to make the adoption final.

-Once legally adopted the child has the same legal rights of a biological children (i.e., intestacy rules) and parents have the fundamental right to raise their children.

Question 28

Child Support

Answer 28

Both parents have a duty to provide child support for their child until the child becomes 18 years old

UNLESS the child is physically or mentally handicapped or is deemed legally dependent (THIS CANNOT BE WAIVED)

-Child support is based on a statutory formula; take the gross income of each spouse minus their expenses and figure out each spouse’s net income; then there will be a % share that the court will order each spouse to contribute

-Court may deviate from the above # by +/- five percent in its discretion

-More time one child spends with a parent will affect the above % share that the court will order each spouse to contribute

Question 29

Biological Parents’ Rights Regarding Adoption of Their Child

Answer 29

Biological parents must consent to their child being adopted UNLESS their rights were terminated.

However, either way the biological parents’ rights must be terminated before an adoption can take place

-The biological parents have due process rights in the hearing for the above termination

-If biological parents are dead, the biological family is given preference to adopt the child first

-If child over 12 years old, they must give consent to adoption. If they refuse, thee court can override if it’s in the best interests of the kid.

Question 30

Marital Home

Answer 30

Presumption is that married couples own home by a Tenancy by the Entirety. (doesn’t matter whose name is on the deed)

-Look to argue homestead.