Florida Family Law Flashcards
Prenuptial and Postnuptial Agreements > can modify virtually every right in a marriage with 2 exceptions, what are they?
1) Child Support: Can never waive the right of a child to receive child support. That right belongs to the child and cannot be waived by the parties.
2) Temporary Alimony (pendente lite): can never waive the right to recieve temporary alimony which is the alimony money awarded during the pendency of the proceedings.
Prenuptial and Postnuptial Agreements >
1) Requirements for Prenuptials (+ req. for amending or revoking them)
2) Unconscionable Prenuptial Agreements (enforceability?)
1) Prenuptials, to be valid, must be:
* In writing
* BOTH parties have to sign
* Must actually get married (consideration) - if not, null & void - agreement is considered to never have come into effect.
Can amend or revoke by subsequent written agreement, signed by both parties. Don’t need consideration - marriage (obviously)
Voluntariness requirement: What are factors considered?
* Time and place of presentment: (one hour before marriage) look for whether parties had sufficient time to consider terms and conditions.
* Opportunity to consult attorney: enough time to seek counsel and figure out the effects of the agreement.
* No other defenses to formation: fraud, duress, coercion - mostly speaking to voluntariness.
2) Unconscionable prenuptial agreements are enforceable ONLY IF:
* the party, who the prenuptial is not unconscionable for, can prove that there was a fair and reasonable disclosure of the property or financial obligations of that party.
Prenuptial and Postnuptial Agreements >
A) Requirements for Postnuptial Agreements
B) What can/can’t be modified in these agreements?
A) Postnuptial Agreements must be
1) In writing
2) Signed by BOTH parties
3) Full and fair disclosure of financial obligations OR completion of discovery
* remember, its basically like a lawsuit that ends with a marriage settlement agreement
* Same standard formation requirements: voluntariness - fraud, duress, coercion, etc.
B) Modification of Property Settlement Agreements (decided between the parties) and
Equitable Distribution (court decided for the parties) is PROHIBITED
* We want finality of title when it comes to this property change.
Alimony, child support, all the monthly payment stuff can be modified
Dissolution of Marriage > Jurisdiction
In Florida, Circuit Courts have jurisdiction over dissolutions of marriage, generally.
In order to have subject matter jurisdiction to grant a divorce
* at least 1 of the parties must have been a resident for at least 6 months.
resident: There is actual intent to make Florida your permanent home. Temporary leaves for work, etc. are fine
Dissolution of Marriage > No Fault Divorce
Florida is a no fault divorce state.
* The court does not take into consideration whether one party was at fault in order for the court to grant the dissolution of marriage.
For the court to grant a Dissolution of Marriage, the only thing needed to prove is that the marriage is “irretrievably broken”
* Usually stated in the pleadings
* Other party will respond by either admitting (done deal) or denying.
* If denied, judge will do 1 of 3 things:
1) Pause the case for up to 3 months. (on chance the couple will get back together
2) Order counseling before granting divorce. (while case is pending and going through motions)
3) Whatever is in the best interest of the parties and minor children (common in domestic violence cases)
Equitable Distribution (+ factors considered)
Process by which the court divides marital assets
Write on essays:
* “Equitable distribution presumes an equal distribution unless factors show that an unequal distribution is warranted”
Factors to consider when making an equitable distribution:
1) Economic circumstances of the party
2) Duration of the marriage (longer – more need for assets)
3) Career and education sacrifices
4) Contribution of one party to the care and education of the children to the marriage
5) Catch all: whatever judge considers relevant (you can literally make up anything on the bar, wont take off points)
Equitable Distribution >
1) Identifying Marital vs. Non-Marital Assets
2) Date of Valuing Marital Assets
Marital Assets:
* All property acquired by either spouse during the course of the marriage
* Interspousal gifts during the marriage
* All property owned as tenancy by the entirety (TBE)
* Jointly titled personal property
* Retirement plans accumulated during marriage
* Enhancement in value of Non-Marital assets resulting from the efforts * of either party during the marriage.
Non-Marital Assets: see footnote 2
* Any property acquired prior to the marriage and/or property acquired in exchange for such property.
* Assets acquired seperately by non-interspousal gift and/or property acquired in exchange for such property.
* Income derived from Non-Marital assets unless the Non-Marital asset is converted for marital purpose.
* Any asset excluded as marital asset via prenup/postnup
Date of Valuing Marital Assets: Whatever date the Judge considers fair and reasonable under the circumstances.
* to prevent strategic divorces - right before about to hit big (stocks)
1) Appreciation of NM Assets:
* Active (Due to time, money, effort) – M
* Passive (Due to market factors) – NM
2) NM assets can change forms without losing NM nature:
* can sell NM car for $1,000 and then buy a PS5.
* The PS5 is still NM property
Alimony > 1) General Rule (5 points)
2) Adultery
3) Modification
Rule:
* Alimony is payment from one spouse to another based on one spouse’s need for that money and the other spouse’s ability to pay that money
Adultery:
* ONLY considered when adultery depleted Marital Assets.
Modification:
* All types of alimony EXCEPT “Bridge the Gap” Alimony can be modified based on a “substantial change in circumstances” of at least one party.
Alimony > Short, Medium, and Long Term Marriage Length
Short Term Marriage = < 7 years
Medium Term Marriage = 7-17 years
Long Term Marriage = > 17 years
Alimony > Types of Alimony
1) Temporary (or Pendente Lite): Money awarded during the pendency of the proceedings.
* CANNOT BE WAIVED.
2) Bridge-The-Gap: Assist a party with legitimate identifiable short-term need while making transition from being married to being single.
* Limited to 2 years.
* Terminates upon the death of either party or the remarriage of the recipient.
* CANNOT BE MODIFIED.
3) Rehabilitative: Assists one party in obtaining education or training to become self-sustainable after dissolution of marriage.
* There must be a specific rehabilitative plan. (program, school, training, etc.)
* Can be terminated by non-compliance with rehabilitative plan or completion of the plan.
4) Durational: Assistance for a certain defined number of years.
* Short and medium term marriages where permanent alimony is inappropriate, or
* Long Term marriages if there is no ongoing need for permanent alimony
* Cannot exceed the length of the marriage
5) Permanent: Assists a spouse who has a minimum financial capacity to be self-supportive.
* Long term marriages if appropriate upon consideration of the factors.
* Can terminate by proving the existence of a supportive relationship for the receiving spouse, or remarriage.
Acronym: This Bitch Really Doesn’t Play (TBRDP)
Basic Rule: Alimony is based on one spouse’s need for that money and the other spouse’s ability to pay that money
Modification of Alimony:
* All types of alimony EXCEPT “Bridge the Gap” Alimony can be modified based on a “substantial change in circumstances” of at least one party.
Parenting Plan > 1) Time Sharing & 2) Parental Responsibility
1) Time Sharing Plan: determines how much time each parent gets with child.
Standard for determining: Best interests of the child.
* Parents ability to spend time and care for the child.
* Moral fitness of the parent.
* Whether the parent will encourage a close relationship with the other parent.
* Reasonable preferences of the child. (age)
2) Parental Responsibility: Which parent gets to make decisions on behalf of the child. (Schooling, religion, medical, etc.)
* There is a presumption of shared parental responsibility.
* If shared is not in the best interest of the child, court can order sole parental responsibility.
These are both always an issue ANYTIME the facts say parties are married and have a kid!
BIGGEST factor: have to be based on “best interests of the child”
* vomit this standard repeatedly on essay. Just add it.
1) Child Support
2) Sanctions for Failure to Pay
Can NEVER be waived!!!
1) The parent who does not live with the child has to pay cash monetary support to parent that lives with the child until the child becomes an adult (18) or becomes legally emancipated.
2 exceptions:
* child is 18 or 19 and still in high school.
* child physically or mentally dependent.
2) If the failure to pay is willful, the court can hold you in contempt of court which can also impose:
* monetary sanctions
* put you in jail
* suspend driver’s license privilege.
Florida Family Law > Professional Responsibility Issues
Contingency fee agreements:
* A lawyer cannot enter into an agreement contingent on establishing a divorce or amount of financial/property support.
* A lawyer can, however, enter into a contingency agreement for enforcement proceedings related to collecting on things already ordered by the court
example: Spouse was ordered to pay 500 dollars, and has not paid. Attorney can be hired on contingency fee basis to collect the $500
Establishing - NO
Collecting - YES
