FL Family Law Flashcards
Who has a duty to support biological children?
Their parents
Who is presumed to be the biological father of a child?
HUSBAND of a married woman is presumed to be a bio dad of any child born:
1. during marriage; OR
2. within 285 days (a little more than 9 months) after death or divorce of husband & wife
What is the burden to overcome the husband/bio dad presumption?
CLEAR & CONVINCING EVIDENCE
If a kid is born to an unmarried woman, how can paternity be established?
1 - acknowledgement of paternity
- dad can acknowledge & sign documents to be legal dad
2 - Paternity Suit (statutory cause of action)
- dad undergoes DNA test
Who can bring a paternity action?
- mom
- dad
- kid
When must a paternity suit be brought?
MUST be filed within 4 years after kid reaches age of majority (kid is 22 years old)
When a dad takes a DNA test, what results will lead to a rebuttable presumption that he is kids bio dad?
DNA test shows dad is 95% likely to be biological dad
- D must now rebut
Who won’t be subject to a judicial order to pay child support?
A parent who lives with a child
How does a court determine the amount of child support?
Court uses statutory guidelines
looking at incomes
If a court deviates from child support statutory guidelines, when do they need to enter writings, findings & justifications?
When court deviates by more than 5%
What does not justify a reduction of child support?
- voluntary reduction in income; OR
- new family obligations
How long does child support last?
- kid is emancipated; OR
- reaches 18 (unless still in HS then it’s until graduation or 19)
When can child support awards be modified?
Upon a showing of a SUBSTANTIAL CHANGE in:
1. circumstances; OR
2. financial ability of either party
What can court do if parent doesn’t pay child support?
- wage reduction
- seizure of proeprty
- contempt order
- interception of tax refunds (state & federal)
- suspension of licenses
- criminal sanctions (failure to pay = misdemeanor)
What does the Uniform Interstate Family Support Act (UIFSA) do for child support orders?
- gives only one support order control & enforceability power
- all subsequent states must defer to very first support order (kid or parent must still live in forum)
Can a child support order in one state be enforced in another?
YES, UIFSA requires it
How can a child support order of one state be enforced in another?
1 - Direct Enforcement
- obligee can mail order to obligors out of state employer, AUTOMATICALLY triggering withholding - unless objection is lodged
2 - Registration
- issuing state sends order to state where obligor resides
How does a court determine any matter relating to parenting & time sharing?
By looking at THE BEST INTERESTS OF THE CHILD
What are the forms of custody?
- physical –> where kid lives
- legal –> decision-making authority
Is there a preference for which parent gets child?
NO, there is no presumption favoring either parent
law DOES prefer parents over non-parents
What is a disqualifying factor for a custody dispute?
- parent guilty of acts of domestiv evidence (detriment to kid if convicted of misdemeanor or greater & still has to pay child support)
When MUST a custodial parent get permission to move?
If moving more than 50 miles away from current place, must get:
1. written consent of every person entitled to time-sharing; OR
2. serve petition to relocate on every person entitled to time-sharing (if no objection within 20 days, allowed unless not in best interest of the child)
Can a custody order be modified?
Yes, requires SUBSTANTIAL CHANGE IN CIRCUMSTANCES
- must affect BEST INTEREST OF THE CHILD
When can parenting time be denied to non custodial parent?
ONLY DENIED IF:
- parent so violent that the risk of harm to child would outweigh benefit
What is the UCCJEA & what does it say?
Uniform Child Custody Jurisdiction & Enforcement Act:
- says that a court has jurisdiction to initially enter or modify child custody or visitation order if it is the HOME STATE of the child
What is the home state of a kid under UCCJEA?
Homestate is where the kid has lived:
1. for 6 months or longer; OR
2. since birth if kid is less than 6 months
temporary absences discarded
The court that made the initial child custody or visitation determination has exclusive jurisdiction until when?
- neither kid or parent live in state
- kid has no significant connection with state & substantial evidence relating to kid is NOT available
Under FL who needs to consent to an adoption?
- Biological mom
- Dad if abby was conceived or born while he was married to mother
- Dad if he previously adopted the child
- Dad if he is on birth certificate
- Dad if listed in PFR
- Adoptee if 12 years or older
- Spouse of Adult Adoptee
Who gets notice for the adoption?
- dad on bcert
- dad married to biological mom when kids was conceived or born
- bio mom
- dad on paternity decree
- dad on PFR
- grandparents that establish “parent-child” relationship
- adoptee if 12 years or older
- spouse of adult adoptee
What interests does an unmarried biological father (UBF) have?
Inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood both during prenancy & after child birth
In Florida, by when does a UBF have to file in the PFR to have rights?
By the time the termination of parental rights (TPR) is filed
What does UCCJEA mean?
Uniform Child Custody Jurisdiction & Enforcement Act
- applies to custody proceedings & controls jurisdiction
In the Matter of the Adoption of Baby Girl B
What is the “full faith & credit” clause?
A clause that requires states to honor other states decisions
- EXCEPTION: does not have to honor decision if court did NOT have jurisdiction in the first place
VL v. EL
When can dad & mom consent to adoption?
- DAD –> at any time
- MOM –> 48 hours after birth OR when doctor says mom is fit
What are some factors used to determine the best interest of the child?
- age & health of all parties
- placement of other kids
- kids wishes (kids older than 12 generally)
- cooperativeness of parent (willingness to allow access to kid to other parent)
- connection with family members (placement allows for family time)
- matieral circumstances (parent 1 can produce more than parent 2)
What are factors that justify departure from child support statutory guidelines?
- special needs of kid
- seasonal variations in income (if you reduce on purpose court will look at your earning capacity)
- kids age
- any spcial shared parental arrangement
- assets of parents & kid
- IRS dependency exception
What are the factors used when court considering to award alimony?
- age & physical/mental health of parties
- assets owned by each party
- custody of children (full custody can justify alimony)
- standard of living during marriage
- duration of marriage
What factors are considered for making equitable distribution?
- age & physical/mental health
- income/educational levels/job skills
- custody of children
- contributions to the family’s economic success
- dissipation of marital assets
use facts in question! There is no right answer
What are premarital agreements called?
Prenuptial agreements
What are the requirements for a premarital agreement?
- in writing (SOF - MYLEGS)
- voluntarily signed by both parites
__
- marriage itself is consideration
- spouses claiming validity MUST establish the agreements fairness
What can’t prenup do?
- have a provision that leaves the disadvantaged spouse a public charge; OR
- may not adversely affect child support; OR
- may not authoritatively determine custody
Can the premarital agreement be amended after marriage?
YES, can be amended or revoked by a written agreement signed by both parties
Do post-nuptial agreements need to comply with SOF?
NO
How can a premarital agreement be challenged?
- duress
- unconscionability
How can you use duress to challenge a prenuptial agreement? factors?
Duress challenges the voluntariness requirement (factors include):
1. whether party had legal representation
2. parties respective levels of business experience
3. awareness of rights given up
ex: threats of physical harm or overbearing & unreasonable time pressure
How can you use unconscionability to challenge a prenuptial agreement?
P has to demonstrate either:
1 - Fundamental Unfairness
- agreement cannot be this
- measured at time of execution of agreement
2 - Lack of Financial Disclosure
- party must show other party did NOT disclose their assets
- contesting party didn’t have independent knowledge of the other party’s assets
- contesting party didn’t waive disclosure
How do you he married in FL?
have a ceremonial marriage
What are the key requirements to get married?
- capacity –> ability to comprehend & voluntarily agree to the marriage
- consent
What are the requirements for a valid ceremonial marriage?
- license (evaluates capacity)
- ceremony (officiant and vows)
How old do you have to be to be married?
18 years old
- 17 year olds may obtain license with their parents written consent (spouse to be can’t be more than 2 years older)
Explain the waiting period between the license & a ceremony?
Couples must wait 3 days, BUT they do not have to wait if:
1. they completed a premarital preparation course; OR
2. are non-residents
Does FL recognize common law marriage?
NO!
- EXCEPTION: FL courts will recognize common law marriages that were valid when entered into in another state
What is an annulment?
Process by which a party seeks a judgment that the marriage is INVALID
- when entered, parties treated as if they were never married
An annulment is based on what grounds?
Grounds that predate the marriage (usually a capacity issue)
What types of marriage qualify for an annulment?
- void marriages
- voidable marriages
Does a party need to go to the court to get an annulment?
- void marriages –> NO
- voidable marriages –> Yes (party must seek annulment in court)
Can a void marriage be waived or ratified?
NO!
- but a void marriage can become voidable if the impediment is removed
Why do parties seek an optional annulment & a formal dissolution decree??
- clarity of record (documenting that marriage does NOT exist)
- collateral remedies (dividng assets & making decisions about children)
What are the grounds that make a marriage void?
1 - Bigamy or Polygamy
- second marriage is void
2 - Mental Incapacity
- usually brought by guardian
3 - Consanguinity
- closeness of blood
- CAN’T marry –> direct blood ancestor, descendant, sibling, aunt/uncle, niece/nephew
Is 1st cousin marriage legal?
YES, in FL
What happens when people in voidable marriage don’t seek a formal annulment?
It is a VALID marriage
unlike void marriages, these grounds are WAIVABLE
When can’t a voidable marriage be invalidated?
- spouse ratifies the marriage by continuing the relationship; OR
- if one spouse dies, the marriage CANNOT be invalidated
What are grounds that make a marriage voidable?
1 - Duress
- can be waived if party under duress remains in marriage after duress gone
2 - Fraud
- waived if party deceived remains after disclosure
3 - Intoxication
- can be waived if stay after sober
4 - Lack of Mental Intent
- greencard marriage
5 - Nonage
- can be waived if stay after 18
6 - Incurable Physical Impotence
- no knowledge before marriage & no ratification after discovery
Explain fraud as a ground for a voidable marriage
Elements:
1. misrepresentation or concealment
2. before marriage
3. by one of the parties
4. that goes to an essential aspect of the marriage
__
Examples:
- Religion –> level of devoteness and denomination
- Procreation or Sex –> ability to have a kid, likelihood of kid with medical condition, willingness to have sex, past sex work
Can you get alimony in an annulment?
Generally, NO!
- may request collateral remedies
- order may include damages
How is property divided in an annulment?
Courts usually put the parties in their “pre-marriage” positions
Who has jurisdiction over dissolution proceedings?
Circuit Court
How do you establish SMJ for a dissolution case?
One of the spouses must be:
1. a FL domiciliary
2. permanent resident of FL
3. for at least 6 months before filing complaint
What MUST residency be corroborated by?
- drivers license;
- voter registration; OR
- 3rd party testimony
When is PJ over spouse required?
If P spouse wants any collateral remedies beyond divorce decree
How do you get PJ over an out of stater?
based on physical presence:
- ownership of proeprty
- minimum contacts
How do you serve an out of stater?
Personal service! IF CANNOT be located, serve by publication
long arm statute
Where is venue proper?
- county where either party resides; OR
- where grounds arose
Is there duty to supplement?
In dissolution cases, YES!
- party must make extensive financial disclosures & they have a continuing obligation to keep them up to date
What are the grounds for divorce?
“No Fault” Divorce
1. irretrievably broken
2. mental incompetence (filing spouse must show that the other spouse has been mentally incapacitated for 3+ years)
When can parties get a summary dissolution?
- have no kids
- both agree marriage is irretrievably broken
- both agree on how to divide their property
In which court does a summary dissolution occur?
County Court!
- must continue for 20 days, then court grants
For how long must a cause of dissolution last if NOT a summary dissolution?
At least 90 days & then adjudicate all of the open matters
- court may order continuance or counseling for reasonably time (up to 3 months)
What are the steps for dividing property upon divorce?
STEP 1 - Categorize Assets (3 categories)
1. spousal A nonmarital asset
2. spouse B nonmarital asset
3. marital assets
STEP 2 - Distribute the Assets
What are nonmarital assets?
- property owned before the date of marriage
- any gift or inheritance received by one spouse in their sole name during the marriage
- property that was exchanged for the nonmarital asset
- passive income from nonmarital asset
- damages in PI case for pain & suffering
- property identified in a written agreement
What are marital assets?
- assets & liabilities acquired or incurred by either spouse
- increase in value to nonmarital asset due to effort of either spouse
- marital funds used to pay down separate debt
- interspousal gifts during marriage
- property held as tenants by the entirety (acquired before or during marriage)
What is the date for determining marital assets & value?
Earliest of the following:
1. date of parties’ valid separation agreement
2. date specifically produced by valid separation agreement
3. date of filing petition for dissolution
4. any other date that court determines is just & equitable
What are the methods of distribution?
1 - In Kind
- giving specific assets to each spouse
2 - Cash Award
- court can value assets & order one party to make a cash payment to the other
What is alimony based on?
Need NOT fault
Can a court consider adultery when making an award for alimony?
YES!
- modern trend –> only considering it if adultery depleted assets or is otherwise relevant for financial reasons
What must a court do to award alimony?
Court MUST make a specific factual determination that one party has an actual need and that the other party has the ability to pay
What are the types of alimony?
1 - Bridge the Gap
- can’t be given for more than 2 years or modified
2 - Rehabilitative Alimony (limited time)
- can’t be given for more than 5 years
- recipient pursuing education or job training
- requesting party must submit concrete plan to court
- modifiable IF substantial change or plan complete
3 - Durational Alimony
- time can’t exceed the length of marriage
- valid for set period of time
What is alimony pendente lite?
a type of alimony a spouse can get for divorce suit fees
When does “bridge the gap” (or permanent/durational) alimony TERMINATE?
- upon death of either party; OR
- remarriage of recipient (cohabitation might work)
Are alimony payments a taxable event?
NO!!!!
What are remedies available if spouse is ordered to pay alimony but doesn’t?
- wage reduction
- asset seizure (usually bank account)
- contempt order
