FL Family Law Flashcards
Jurisdition
To hear a family-related dispute, the court must have subject-matter jurisdiction and personal jurisdiction over the parties. Florida law requires at least one spouse to be a resident of the state for six months before commencing a matrimonial action. In determining residency, the parties need not be physically located within the state for the entire six-month period. If the parties did not reside within Florida for the entire six-month period, the court will consider a party’s intent to make Florida her principal residence and will consider the reasons for the absence.
Grounds for Dissolution
Florida is considered a “no-fault” divorce state. The no-fault grounds for divorce eliminate fault and wrong as a ground for dissolution. A marriage may be dissolved when the court finds that the marriage is irretrievably broken. For the court to grant a divorce, there must be testimony of at least one spouse with regard to the status of the marriage. The testimony of either spouse is sufficient proof to establish the requisite grounds. If the parties have minor children of the marriage or the responding party denies that the marriage is irretrievably broken in his responsive pleading, then the court may (i) continue the proceedings for a period not to exceed three months for the parties to attempt reconciliation, (ii) order the parties to undergo counseling, or (iii) order the parties to take any actions that the court feels may be in the best interests of the parties and the minor children.
Parental Responsibility and Time-Sharing
In Florida, both parents have parental responsibility and “time-sharing” with their children. Each minor child is to have frequent, continuing contact with both parents and the parents are encouraged to share the rights, responsibilities, and joys of raising their children. Shared parental responsibility generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child.
Parental Time Sharing Rebuttable Presumption
Florida has a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the child. This presumption can only be rebutted by the proponent proving by a preponderance of the evidence that equal time-sharing is not in the minor’s best interests. In determining the best interests of the children, the court may consider a variety of factors, including continuity of care in the child’s life, a willingness to promote a relationship with the noncustodial parent and to be reasonable when changes are required, the wishes of the child, if of a mature age, and any other relevant factor.
Time-Sharing Schedule
A time-sharing schedule is a plan specifying which parent minor children will be with at certain times, including overnights and holidays, as well as providing guidelines for extra-curricular activities, education, childcare and foreign travel. The parents are encouraged to create a time-sharing schedule, but if they cannot agree or if the court does not approve the plan, the court will establish the schedule. The court will order a time-sharing schedule that is in the best interest of the children.
Parenting Plan
A parenting plan is required in all cases involving time-sharing with a minor child. Husband and Wife, or the court if Husband and Wife cannot agree, will develop a parenting plan, which governs the relationship between the parties as it relates to decisions that must be made regarding Son and Daughter. The parenting plan must describe, in detail (i) the responsibility for the daily tasks associated with child rearing and how such responsibility will be shared between Husband and Wife, (ii) the time- sharing schedule, (iii) the methods that each party will use to communicate with the child, and (iv) the responsibility for communication about and completion of forms relating to health, education, and other activities.
Equitable Distribution of Property
Florida is an equitable distribution state. Upon dissolution of a marriage, marital property is divided in a fair and equitable manner. The court must begin with the premise that the parties will receive an equal distribution of all marital property, but if the court is presented with justification for unequal distribution, the court, which has broad discretion in fashioning an equitable distribution award, may do so. The justification for unequal distribution is based on a number of factors, including the length of the marriage, the economic circumstances of each spouse, the contribution of each spouse to the marriage, including homemaker services, child rearing, and education of the children, and any other factors that the court finds necessary and just.
Before dividing marital property, the court must first determine which assets are marital and which are nonmarital. Generally, property acquired during the marriage, whether jointly or individually, is marital property. Title to the property is immaterial.
Marital Home
A court may award exclusive use of the marital residence to one party, but the court must first determine that the award of the residence is in the best interests of the dependent children to remain in the residence, or if exclusive use is requested for someone other than the minor children, the court must first determine that equities will be served by the award.
Pensions (e.g., military pension)
Retirement or pension benefits, whether vested or nonvested, that accrued during the marriage are considered marital property and subject to equitable distribution. These benefits include military pensions. If a pension plan has started prior to the parties’ marriage, the pension plan will be both a marital and nonmarital asset. As a result, the portion that accrued prior to the marriage will be nonmarital.
Alimony
To determine the proper alimony type and amount, the court considers the following economic factors, as well as any factors that promote equity and justice between the parties: (i) standard of living during marriage; (ii) duration of the marriage; (iii) parties’ age, physical, mental, and emotional condition of each party; (iv) parties’ resources and income; (v) earning capacity and education level of the parties (including ability to obtain necessary skills or education); (vi) contribution to the marriage, including homemaking, child care, and career building of the other party, and (vii) responsibilities for minor children. Marital misconduct in the form of adultery may be considered by the court, but the modern trend is only to consider such misconduct if it contributed to a dissipation of marital assets or resulted in a negative financial impact.
Types of Alimony
Florida recognizes four types of alimony, each with its own purpose:
Bridge-the-gap alimony is awarded to allow a party to transition from being married to being single. It is designed to help a party with legitimate, specific short-term needs.
Rehabilitative alimony is for a limited period of time to assist a party in establishing self-support, by either redeveloping previous skills or credentials or acquiring the education, training, or work experience necessary to develop appropriate skills or credentials. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse.
durational alimony may be awarded for a short period. The court may order durational alimony to provide economic assistance to a party for a set period. The length of durational alimony generally may not exceed 50% of the length of a short-term marriage, 60% of a moderate-term, or 75% of a long-term marriage.
Pendente lite, or temporary, alimony is available only from the time of separation until the time that the marriage of the parties is dissolved.
