FL FAMILY LAW

Question 1

Antenuptial Agreement

Answer 1

Premarital agreements (prenuptial) are contracts entered into by engaged people, and they are generally valid. The contracts fall within the SOF and must be in writing and voluntarily signed by both parties. The marriage itself is sufficient consideration. While they can be about almost anything, the vast majority deal with economic issues that may arise if the marriage fails. It may NOT adversely effect child support or authoritatively determine custody.
Modifications, amendments, and revocations are permitted to the agreement after marriage, and no consideration is necessary.

Question 2

Premarital Agreement Challenge Under Duress

Answer 2

• Must be entered into voluntarily
• look for legal representation
• look for levels of business experience on each side
• look for awareness of rights given up

Question 3

Premarital Agreement Challenged Under Unconscionability

Answer 3

• fundamentally unfair at the time of execution
• failure of financial disclosure (other party did not disclosure their assets, contesting party didn’t have independent knowledge of other party’s asserts and contesting party didn’t waive disclosure)

Question 4

Ceremonial Marriage Requirements

Answer 4

• License (opportunity for the state to evaluate capacity)(generally, must be 18 and waiting period of 3 days)
• Ceremony (need officiant and vows)

Question 5

Common Law Marriage

Answer 5

Florida does not recognize common law marriage. However, Florida courts will recognize common law marriages that were valid when entered into in another state.

Question 6

Common Law Marriage

Answer 6

Florida does not recognize common law marriage. However, Florida courts will recognize common law marriages that were valid when entered into in another state.

Question 7

Annulment Based on Ground that Predates Marriage

Answer 7

Annulment is the process by which a party seeks a judgment that the marriage is invalid. After a judgment of annulment has been entered, the parties are treated as if they have never been married.
If marriage is VOID, annulment is not necessary. A void marriage cannot be ratified, but a void marriage can become voidable if the impediment is removed.
Voidable means that you are married.

Question 8

Reasons to Annul Void Marriage

Answer 8

1. Clarity of the record (ex, documenting that the marriage does not exist)
2. Collateral remedies (ex, dividing assets and making decisions about children)

Question 9

Grounds that make a marriage void

Answer 9

Ultimately, all three are issues of capacity.
1. Bigamy or Polygamy
—- If either party has a living spouse, 2nd marriage is void
2. Mental Incapacity
3. Consanguinity
—- Consanguinity means the closeness of blood. (1st Cousin marriage is legal in Florida)

Question 10

Voidable Marriages Rule

Answer 10

A voidable marriage is valid unless one spouse seeks an annulment. The grounds can be waived. Only a spouse can attack a voidable marriage, and if that spouse ratifies the marriage by continuing the relationship, or if one spouse dies, the marriage cannot be invalidated.

Question 11

Grounds that Make Marriage Voidable

Answer 11

• Duress
• Fraud (misrepresentation or concealment of information prior to marriage that goes to essential element/aspect of the marriage)(ex, lying about religion, procreation, sex)(NOT money, property, social status)
• Intoxication
• Lack of Marital Intent (get married to get laid)(married for US citizenship)
• Nonage
• Incurable Physical Impotence (if no knowledge of this before marriage)

Question 12

Parties in Annulment May Request Collateral Remedies

Answer 12

Generally, alimony is not awarded during an annulment. You can ask for damages and property division and orders relating to children and child support.

Question 13

Jurisdiction, Service of Process, and Venue of Divorce

Answer 13

Circuit courts have jurisdiction over dissolution proceedings. To have subject matter jurisdiction, one of the spouses is a Florida domiciliary and permanent resident of Florida for at least 6 months. (Constitutional?) Personal jurisdiction over the other spouse is not needed for the divorce itself, but if the filing spouse wants any collateral remedies beyond simply a divorce decree, then the court needs personal jurisdiction over the other spouse. Personal Jurisdiction over out of state spouse is based on physical presence, ownership of property withing state, or minimum contacts with the state. Venue is proper in the county where either party resides or where the grounds arose.

Question 14

Grounds for Divorce

Answer 14

• Irretrievable Breakdown of the Marriage
  — The marriage is irretrievably broken. The only defense to dissolution is a denial of the grounds for the action.
• Adjudication of mental incompetence
  — The filing spouse must show that the other spouse has been mentally incapacitated for at least 3 years.

Question 15

Summary Dissolution

Answer 15

If the parties agree that their marriage is irretrievably broken and they have no children, and they have also agreed on how to divide the property, they are eligible for a summary dissolution. A summary dissolution is basically a divorce on the papers. This occurs in county court. The county court must continue the matter for 20 days but then it can grant the divorce.

Question 16

Property Distribution Generally

Answer 16

Florida is an equitable distribution state. Two key steps:
1. Categorize the assets
—- Spouse A’s separate property
—- Spouse B’s separate property
—- Marital Assets
2. Distribute the assets

Question 17

Separate Property

Answer 17

There are 6 categories of separate property
1. property owned before marriage
2. Any gift or inheritance received by one spouse in their sole name
3. Property exchanged for separate property
4. Passive income from separate property
5. Pain and suffering recoveries
6. Property identified in a written agmt

Question 18

Marital Assets and Liabilities

Answer 18

Includes
1. Assets and liabilities acquired or incurred by either or both
2. Increase in value of nonmarital assets due to efforts of either spouse or from contribution or expenditure of marital funds
3. Interspousal gifts
4. Vested and nonvested benefits or funds accrued during the marriage
5. Property held as tenants by the entirety
6. Paydown of the principal of a note and mortgage secured by nonmarital property and portion of any passive appreciation

Question 19

Equitable Distribution

Answer 19

Each party keeps their separate property. The court exercises its discretion to make an equitable distribution of all marital assets. There is a presumption that the court should distribute the property equally unless justification for unequal treatment is shown.

Question 20

Factors Considered in Making Equitable Distribution

Answer 20

a) Age and Physical/Mental health
b) income/educational levels/job skills
c) custody of children
d) contributions to the family’s economic success
e) dissipation of marital assets

Question 21

Method of Distribution

Answer 21

1. in kind
2. cash award

Question 22

Theory of Alimony

Answer 22

The concept of alimony rests on two interconnected ideas.
1. The reciprocal duty of spousal support
2. It may be unjust to abruptly deprive an economically dependent spouse of that support

Question 23

Types of Alimony

Answer 23

1. Bridge the Gap Alimony – Designed to help a party transition from being married to independent economic life. Cannot exceed two years and cannot be modified. Terminates at death of either party or remarriage of recipient.
2. Rehabilitative Alimony – Awarded for a limited time to allow the recipient to pursue education or job training and become economically self sufficient. Requesting party must submit a concrete plan to the court. It is modifiable.
3. Permanent Alimony – Provides for the needs of a party who lacks the financial ability to meet their own needs following dissolution. A court must find that no other form of alimony is fair and reasonable under circumstances. Standards of proof depend on length of marriage. (Long marriage - 17 years or more, moderate duration is 7-17 years, short marriage is less than 7)
   Long marriage = preponderance of the evidence
   Marriage of moderate duration = clear and convincing evidence
   Short marriage = exception circumstances
4. Durational alimony – Provides economic assistance for a set period of time, but cannot exceed the length of the marriage. It is modifiable and terminates on death of either party or remarriage.

Question 24

Facts to Consider in Awarding Alimony

Answer 24

• Age/physical and mental health
• Assets owned by each party
• Custody of children
• standard of living during the marriage
• duration of the marriage

Question 25

Tax Consequences

Answer 25

Before 2019, the payor could take a tax deduction for alimony payments and alimony was treated as income to the recipient. Since 2019, alimony payments are not a taxable event.

Question 26

Enforcement Mechanisms

Answer 26

a) wage reduction – a court order addressed to payor’s employer, instructing employer to take money out of that person’s paycheck and forward to recipient
b) asset seizure – can go after the payor’s assets. Preference is typically to seize their bank account and take money out.
c) contempt order

Question 27

Presumption for Children Born During Marriage

Answer 27

The husband of a married woman is presumed to be the biological father of any child born during the marriage or within 285 days after divorce or death of the husband.

Question 28

Children Born to Unmarried Woman

Answer 28

A) acknowledgment of paternity
B) paternity suit – the mother, father, or child may bring the action. A guardian ad litem can be appointed on behalf of a minor. Must be filed within 4 years after the child reaches the age of majority. After DNA testing, if the tests show that the defendant is more than 95% likely to be the father of the child, then a rebuttable presumption of paternity is established.

Question 29

Results of Finding Parentage

Answer 29

A duty of support arises when paternity is established. It is also legally binding for all other issues where a parent child relationship might be important

Question 30

Who Pays Support

Answer 30

For the most part, support orders are directed at non-custodial parents. There are two key categories of non-custodial parents, those who were previously married to the other parent and those who were never married but were determined to be a parent.

Question 31

Child Support Guidelines

Answer 31

The court uses statutory guidelines to determine the amount of child support. There is a statutory chart. If the court chooses to deviate from the guidelines by more than 5% it must enter written findings and a justification to allow for appellate review. Factors justifying departure
* Special needs of the child
* seasonal variation in income (agriculture)
* the child’s age
* any special shared parental arrangement
* assets of parents
Situations that DO NOT justify departure
* voluntary reduction in income
* new family obligations

Question 32

Child Support Length

Answer 32

Child support generally runs until the child is emancipated or reaches the age of majority. Until the child is 18 unless the child is still in highschool, in which case support runs until graduation or age 19, whichever comes first.

Question 33

Modification (Child Support)

Answer 33

Child support awards and agreements can be modified upon a showing of a substantial change in circumstances or financial ability of either party.
A) arrears – child support orders can only be modified prospectively. Back due payments cannot be modified.
Anymore than a 5% deviation from statutory guideline, judge must issue written findings and justification therefore.
The judge must order payment of child support that varies from the guidelines whenever any of the children are required by order or agreement to spend a substantial amount of time with the obligor parent, whether the living arrangement is temporary or permanent.

Question 34

Child Support Enforcement Mechanisms

Answer 34

• interception of tax refunds
• suspension of licenses
• criminal sanctions

Question 35

Uniform Interstate Family Support Act

Answer 35

The UIFSA has been adopted in all states to establish, enforce, and modify interstate child support orders. In essence, it makes state borders disappear by combining long arm jdx with the principles of continuing exclusive jdx with the home state of the child. Allows child support orders entered in one state to be enforced in another.
UIFSA limits the ability of another court to modify the original support order. The role of the obligor’s state is only to enforce the original order, unless none of the parties still reside in the issuing state or the parties consent in a record to the non issuing court’s assertion of jurisdiction to modify the order.

Question 36

Terminology for Custody

Answer 36

Physical custody – where the child lives
Legal custody – who had decision making authority concerning the child
^^ can be shared or given exclusively
Modern trend is to use the term parental responsibility to refer to both.

Question 37

Best Interests of the Child (& Factors)

Answer 37

The best interests of the child is the primary consideration in developing or approving a parenting plan. There is no presumption favoring either parent. There is a preference for parents over nonparents. Domestic violence is generally a disqualifying factor in a custody dispute.
Factors:
* age and health of all parties
* placement of other children
* child’s wishes
* cooperativeness of parent
* connection w/ family members
* material circumstances

Question 38

Parental Relocation

Answer 38

If the custodial parents wants to move at least 50 miles from their current residence, the parent must
1. Obtain the written consent of every person entitled to time sharing with or access to the child or
2. Serve a petition to relocate on every person.
If no objection is received in 20 days, the court will grant. If objection is file, the court may allow temporary relocation if it is likely that the petition will be granted.
The court will assume the application is legitimate and made in GF. The other parent can prove otherwise.

Question 39

Modifying Custody Order

Answer 39

Custody orders can be modified. Modifications require a substantial change in circumstances. Must affect the best interest of the child.

Question 40

Visitation/Parenting TIme

Answer 40

A non-custodial parent is entitled to spend time with the child. This is based on the belief that it is beneficial to the child. Therefore, this request is rarely denied unless it poses a danger or threat to the child.

Question 41

Nonparent Visitation

Answer 41

The Sup Ct said that a court cannot substitute its judgment for the judgment of the parent because parents have a constitutional right to raise their children as they see fit. Parent’s decisions on 3rd party visitation are given special weight. To override this interest, the nonparent must show that denial would cause detriment to the child

Question 42

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 42

Primary test – home state jurisdiction – a court has jdx to initially enter or modify a child custody or visitation order if it is the home state of the child. The home state is where the child has lived with a parent for at least 6 months. If no state qualifies, then the state that has jdx is the state that was the home state 6 months ago.
Significant connection test — child and one parent have significant connection with state, substantial evidence is available in the state concerning the child’s protection, training, and personal relationships.
Multiple states can have significant connection but the court that made the initial custody or time sharing agreement has exclusive, continuing jurisdiction over the matter until the court determines (i) neither child nor parent has significant connection with the state and substantial evidence relating to the matter is no longer available and (ii) neither the child nor the parents continue to reside in that state.
Court may decline jurisdiction when the party seeking to invoke the courts jdx has engaged in wrongful conduct.

Question 43

Who may adopt

Answer 43

Any competent adult may adopt. A married couple can adopt and so can an unmarried adult. A married individual acting alone can adopt but they do need their spouse’s consent.

Question 44

Who must consent to adoption

Answer 44

Unless there are grounds for terminating parental rights, the following must consent to adoption
1. the parents if the adoptee is a minor
(the consent of a parent who deserted or abandoned may be waived)
2. the adoptee if they are an adult or a minor over 12
3. anyone else who has been granted primary parental responsibility
The court can consent in the parents’ place if the child is under state supervision.
If the parent’s rights are terminated, must wait 30 days to file petition for adoption after the judge signed the judgment terminating parental rights.

Question 45

Consent of Unmarried Biological Father in Adoption

Answer 45

A father of a nonmarital child who never married the mother cant veto an adoption by withholding consent unless he has played a meaningful role in the life of the child.

Question 46

Investigation (adoption)

Answer 46

The prospective parents must submit to criminal background checks and make financial disclosures. They are also interviewed and a home visit is performed.

Question 47

College Education Orders

Answer 47

The FL Sup Ct has held that court ordered, post-majority support orders were error, unless the child is legally (physically or mentally) dependent after the age of majority. The court specifically disapproved court ordered college education payments where there is no indication of post majority dependency and no agreement to pay. The court also disapproved increasing alimony to enable the custodial parent to fund the children’s college education.

Question 48

Denials of Visitation Rights

Answer 48

A parent may not be deprived of visitation merely because the judge considers his conduct morally outrageous or reprehensible, rather, the conduct must adversely affect the children’s morals and welfare.
If a proper showing of adverse effect on the child is made, then an order for conditional or restricted visitation can be devised.

Question 49

Sole Custody Awards

Answer 49

The court shall not enter sole custody to one parent unless there is a showing that shared parental responsibilities would be detrimental to the child.

Question 50

Consent for Adoption

Answer 50

Consent to an adoption must be executed in the presence of the court or by affidavit signed in the presence of two witnesses and acknowledged before a notary public who is not a signing witness. 3 day revocation period or may be revoked any time prior to placement of the child with the prospective adoptive parent, whichever is later.

Question 51

Rule for Modifying Time Sharing

Answer 51

A determination of parental responsibility, a parenting plan, or a time sharing schedule may not be modified without a showing of a substantial, material, or unanticipated change of circumstances and a determination that the modification is in the best interests of the child. It is public policy in FL that (i) each minor child has frequent and continuing contact with both parents after the parents separate and (ii) parents are encouraged to share the rights, responsibilities, and jobs of childrearing.
Factors
1. Demonstrated capacity and disposition of each parent to encourage a close and continuing parent-child relationship, to honor time-sharing schedule, and to be reasonable when changes are required
2. The division of parental responsibilities and tasks
3. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
4. The geographic viability of parenting plan with attention to needs of school-age children and amount of travel time required
5. Moral fitness of the parents, including ability to provide environment free of substance abuse
6. Mental and physical health of the parents
7. The reasonable preference of the child, if court deems child to be sufficient intelligence
8. Evidence of domestic violence, child abuse, child abandonment, or child neglect or evidence that either parent has knowingly provided false info regarding the same