Family Law (Grossman) Flashcards
Family Law Essay Structure
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
Prenuptial Agreement
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.
Postnuptial Agreement
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.
Legal Standard for Granting a Divorce
-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.
When does a FL court have jurisdiction to grant a divorce?
The court will have jurisdiction to grant a divorce if the petitioner resided in FL for 6 MONTHS prior to the filing.
Non-Marital Assets
Property acquired prior to the marriage and kept separate.
Marital Assets
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.
Equitable Distribution
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.
Duration of Marriage
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.
How long is a Short-Term Marriage?
Any marriage less than 10 years.
How long is a Moderate-Term Marriage?
10-20 years.
How long is a Long-Term Marriage?
Longer than 20 years.
Pendente Lite
-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
Bridge the Gap Alimony
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
Rehabilitative Alimony
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.
Durational Alimony
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.
Types of Alimony
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.
Factors for determining alimony
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)
Custody (standard)
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)
Shared Parental Responsibility
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
Parenting Plan
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
Factors for Determining Shared Parental Responsibility and the Parenting Plan
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.
Relocation of Child
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.
What does the UCCJEA stand for?
The Uniform Child Custody Jurisdiction Enforcement Act.
