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Florida Family Law Flashcards

1
Q

CHILD SUPPORT:

Medical Insurance

A
  • ALL child support orders must provide for health insurance
    • UNLESS not accessible or reasonable in cost
  • Cost is UNREASONABLE if exceeds 5% of gross income of insuring parent.
  • Court must include provision for uncovered medical and dental expenses.
    • Usually split between parents
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2
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Other Sanctions

A
  • Intercept tax refunds
  • Suspend driver’s license
  • Suspend professional licenses
  • Report to Credit Bureau
  • Seize property or assets
  • Attorney’s fees
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3
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Criminal Contempt

A
  • Jail term imposed for willful failure to pay.
  • Must be proved beyond a reasonable doubt
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4
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Child Support Recovery Act

A
  • Federal crime to willingly fail to pay child support for child in another state.
  • BUT ONLY IF over $5,000 owed or if unpaid for more than one year
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5
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Full Faith and Credit for Child Support Orders Act (“FFCCSOA”)

A

Court MUST give FFC to other court’s child support order as long as:

  • Original court had SMJ and PJ;
  • Notice was given; and
  • Opportunity to be heard.
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6
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Enforcement in Other Jurisdictions

A
  • UIFSA ‐ Uniform Interstate Family Support Act
  • Adopted in all states
  • Created to simplify collection in another jurisdiction

Tip: If more than Florida is involved, always discuss UIFSA.

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7
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Withholding Income

A
  • If default occurs, employer is notified of wage garnishment order.
  • 15 days’ notice must be given to obligor.
  • Obligor may request a hearing
    • If no hearing, order goes into effect in 2 weeks.
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8
Q

CHILD SUPPORT:

Enforcement of Child Support Awards

A

Enforced through:

  • Civil contempt orders
  • Income withholding (wage garnishment)
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9
Q

CHILD SUPPORT:

Post‐Secondary Education

A
  • No obligation to pay for post‐secondary education.
  • EXCEPTION: Mentally or legally dependent after 18 or may agree to pay for it.
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10
Q

CHILD SUPPORT:

Modification of Child Support:

Incarceration

A
  • If obligor/payor is imprisoned, he must file PETITION.
  • Child support is suspended.
  • Monies due are still calculated.
  • Once released, court will hold hearing to determine realistic method of payment of past‐due, current, and future support.
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11
Q

CHILD SUPPORT:

Modification of Child Support:

Changes in the Child’s Circumstances

A

Modification may occur if child:

  • Dies;
  • Is emancipated;
  • Gets married; or
  • Joins the armed services.

Burden is on MOVANT (parent seeking modification).
Retroactive to date of motion filing

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12
Q

CHILD SUPPORT:

Subsequent Children

A
  • If subsequent child is born, not factored in.
  • Subsequent children ONLY considered regarding increase in child support.
  • NOTE: If a parent has a subsequent child and takes a second job specifically to help support that second child, court may disregard second job and income resulting from it in determining child support for first child.
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13
Q

CHILD SUPPORT:

Modification of Child Support:

Substantial Change in Parent’s Circumstances

A
  • Change in occupation;
  • Increase in income;
  • Decrease in health;
  • Remarriage that creates additional obligations;
  • Substantial change defined as either a 15% or $50 difference in the resulting calculation (whichever is greater);
  • Changes in needs of party;
  • Needs of child; AND
  • If health insurance is NOW available to 1 party.
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14
Q

CHILD SUPPORT:

Jurisdiction for Modification of Support

A

Only two ways to move jurisdiction:

  1. Neither party nor child live in court of continuing jurisdiction; or
  2. By agreement of the parties.

If neither bases are present, new state should not modify a child support order.

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15
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Civil Contempt

A
  • Violation of court order is required.
  • Fine or incarceration can result. o Notice and opportunity to be heard are required.
  • Willful failure to pay is a 1st-degree misdemeanor.
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16
Q

CHILD SUPPORT:

Based on?

A

BOTH parents legally required to support minor child; Equal responsibility, unless circumstances dictate otherwise.

  • Based on child’s needs; NOT parents ability to pay/support until 18 years old.
  • Based on any source of income: Wages, interests, dividends, rental income, capital gains, retirement benefits, social security benefits, etc.
  • Based on “income share” model: as if “all continued to live together”
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17
Q

CHILD SUPPORT:

Sources of Support Sources:

A
  • Based on any source of income & “income share” model (As if “all continued to live together”): Wages, interests, dividends, rental income, capital gains, retirement benefits, social security benefits, etc.; Allocation of responsibility per respective net income
  • ​*
  • 3 public policy principles guide child support: Parents fundamental obligation to support children; Combined income as if intact home; & Minimize litigation.
  • BOTH parents must file financial affidavits & child support guidelines worksheet. Failure to file a financial affidavit results in court imputing income.
    • Party seeking to impute income of another must: Prove non‐compliance is voluntary and Identify the amount imputed. NOTE: Voluntary underemployment/unemployment differs from temporary voluntary income reduction (e.g., going to college).
  • “Rebuttable presumption” amount correct, court may deviate up or down 5%
    • If more than 5%, court must set out specific findings why.
    • Factors considered to warrant deviation: Child’s age; Unusual needs of the child (e.g., special education or medical needs); Standard of living; Station in life; AND Financial status of each parent.
  • Childcare Costs: Court will allow these costs to be credited and deducted in calculations.
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18
Q

Common‐Law Marriage:

A

Florida doesn’t permit C-L marriages. Unless before 1968. Does, however, recognize C-L marriages from other states pursuant FFC.

  • Requirements:
    1. Mental Capacity
    2. Hold Themselves Out as Being Married: parties must present themselves–in present-tense–as C-L married.
      • courts will look at: 1) Cohabitation; & 2) Rep in community
      • Cohabitation alone is NOT enough to prove a C-L marriage.
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19
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Specific Types of Marital Property:

Professional License or Degree?

Goodwill?

Expectancy?

A
  • Professional License or Degree:
    • Not distributable property
    • MAY affect alimony or distribution of marital assets
  • Expectancy:
    • Possible future interest (inheritance) ‐ Not distributable
  • Goodwill: property of an intangible nature, which includes the expectation of continued public patronage that exists separate & apart from reputation of a particular individual.
    • Considered marital property if developed during the marriage
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20
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Marital Property

A

All property acquired during the marriage

  • Includes increases to non‐marital property that resulted from either a spouse’s efforts or an improvement due to marital funds
  • Gifts between spouses are marital property.
  • Pension, insurance, and other benefits – the accrual is marital property.
  • Court divides marital debts and liabilities equitably.
  • Titling is NOT determinative – it is immaterial
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21
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Factors in the Distribution of Marital Property

A
  • Length of marriage
  • Economic circumstances of each spouse
  • Contributions of each spouse during marriage
  • Homemaking & child rearing are considered contributions.
  • Contributions to education or career of other spouse
  • Interruptions to spouse’s career or education
  • Interest of one spouse to retain an asset (business)
  • Spousal contribution to production of income
  • Intentional destruction of an asset
  • Retaining marital residence for kids
  • Any other factors the court finds “necessary and just”
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22
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Attorney’s Fees

A
  • Court may award attorney’s fees to either spouse.
  • Court will consider the funds of each spouse.
  • Factors considered:
    • Duration of litigation
    • Scope and history of the litigation
    • Prior litigation between parties
    • Harassment
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23
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Exceptions to Marital Property

A
  • Property acquired before the marriage;
  • Property specifically excluded as marital property pursuant to a valid agreement;
  • Property acquired by gift (except between spouses); and
  • Property or income derived from non‐marital property during the marriage, unless income from the marriage was commingled with it.
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24
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Specific Types of Marital Property:

Retirement or Pension Benefits

A
  • Considered marital property and are subject to equitable distribution
  • Also includes military benefits
  • Only the present value
  • Tip: Watch the timing of the pension benefits.
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25
Q

Annulment

A

VOIDS a marriage (as if it never happened)

  • Reason for annulment must exist at time of marriage
  • Florida rule: child of an annulled marriage is not considered to be a child of that marriage.
  • Does not require judicial dissolution
  • ANY party may seek annulment of a void marriage: Husband, wife, parent, guardian
  • 2 Bases for a Void Marriage: 1) Prior Existing Marriage 2) Mental Incapacity
    • Person getting married must be lucid.
    • Must be able to understand duties & responsibilities of marriage
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26
Q

Annulment:

Voidable Marriage

A
  • Requires judicial decree
  • only one spouse can seek an annulment
  • Spouse dies before marriage annulled: cannot be invalidated.
  • 6 Grounds for Voidable Marriage: 1) Incest; 2) Age; 3) Impotence; 4) Intoxication, Misrepresentation, Duress, Coercion, Force; 5) Fraud; 6) Lack of Intent
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27
Q

Annulment:

Voidable Marriage:

Fraud, Misrepresentation, Duress, Coercion, Force

A
  • The fraud must be present, not a future fact.
  • Continuing relationship AFTER knowledge of fraud (or after misrepresentation or duress) is considered to be ratification.
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28
Q

Annulment:

Voidable Marriage:

Lack of Intent

A
  • Meant as a joke or done in jest
  • However, if the marriage was later consummated

then it CANNOT be annulled.

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29
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Divorce

A

a legal dissolution of a marriage

Grounds for Divorce:

  1. Incapacity
  2. No Fault
  3. Irretrievably Broken: Requires: 1) Testimony of a spouse; & 2) Court must make finding marriage is irretrievably broken.
    • Uncontested without Minor Children: Court will dissolve
    • Contested or minor children: If parties have minor children or one spouse denies that marriage is irretrievably broken, then court MAY:
      • Continue for 3 months to attempt reconciliation; Order counseling; OROrder other “best interest” actions.
      • OUTCOME: If court finds the marriage is irretrievably broken, it will grant the divorce.
    • Defenses to Claim of Irretrievably Broke: ONLY defense available in Florida is denial of the grounds
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30
Q

Simplified Dissolution Procedure

A
  1. County court
  2. No legal counsel
  3. Requirements:
    • No minor kids
    • Wife not pregnant
    • All assets are amicably divided
    • Must file
      • financial affidavit,
      • financial disclosures, and
      • draft a settlement agreement
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31
Q

Marital Agreements:

Postnuptial

A
  • Consideration is required–mutual exchange of promises will suffice
  • May determine property division & spousal support
  • Unlike pre‐nup, may affect child support and custody
    • May NEVER adversely affect the child’s interests – best interests of the child
  • NOT subject to Statute of Frauds; Unless land involved
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32
Q

Marital Agreements:

Premarital Agreement (“Pre‐nup”)

A
  • Made before marriage
  • Deals with what happens in the case of divorce or death; Relate to property division, alimony; and attorney’s fees
  • Subject to Statute of Frauds
  • Subject to Statute of Frauds adopted by Florida
  • Pre‐nups cannot determine child support or custody
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33
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Separation Agreement

A
  • For couples planning to divorce
  • Often drafted during pendency of dissolution action
  • Subject matter often includes: Property division; spousal support; custody; visitation; child support & visitation
  • Often merged into final judgment
  • Court will accept if based on full and fair disclosure
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34
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Property Settlement Agreement

A
  • done before divorce decree
  • Settles the economic issues
  • Must be intended to be final
  • Deals with both real and personal property
  • May not be modified
  • NOTE: If parties reconcile or remarry each other,

executed provisions are unaffected.

* ***Unexecuted provisions*** are abrogated.
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35
Q

Validity of Marital Agreements:

5 Elements

A

The agreement must be:

  1. In writing
  2. signed
  3. fair & reasonable
  4. voluntary &
  5. based on full disclosure
36
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Full Disclosure

A
  • Pre‐nup must be based on full disclosure.
  • Parties must exercise meaningful choice or else court won’t enforce agreement.
  • Court won’t enforce if unconscionable or if one party was NOT given fair and reasonable disclosure.
  • If a party did not waive their rights to disclosure and could not obtain adequate

knowledge of the finances or property of the other party, the court will declare the agreement invalid.

  • Note: If agreement initiated AFTER completion of discovery & if all relevant info could have been obtained, then party cannot challenge agreement.
37
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Fair and Reasonable

A
  • Factors to consider: age, health, wealth, etc.
  • Bases for “unfair” or “unreasonable” are:
    • Fraud
    • Duress
    • Undue Influence
    • Media Misconduct (bias toward a party)
38
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Voluntary

A
  • Must be free from duress
  • Factors considered:
    • Time pressure
    • Opportunity to consult atty
    • Prior business experience
  • Voluntariness requires:
    • Being informed of right to counsel; and
    • Being given the opportunity to consult with counsel.
39
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Impoverished Spouse

A

If an agreement leaves a spouse impoverished, court MAY set it aside even if fair, reasonable, voluntary, and full disclosure.

40
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Modifying Marital Agreements

A
  • Parties may always AMEND, REVOKE, or TERMINATE marital agreements.
    • Must be done by a written agreement
  • Child support: A court may always modify child support provisions even if the parties have included a provision in the agreement that prohibits modification of child support.
41
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Abuse in the form of

A

Abuse can take the form of:

  • Assault
  • Battery
  • Sexual battery
  • Kidnapping
  • Stalking
  • False Imprisonment
  • Other acts that results in injury or death
42
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Protected Parties

A
  • Spouses – current or former
  • Faux spouses – live together as spouses but not legally married
  • Children
  • Anyone related by blood or marriage
  • People residing together as if family
  • People with child in common

Tip: Analyze if the movant has standing.

43
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Relief

A

injunction–primary or general

Requirements:

  1. An act has been committed OR a “reasonable belief” of act to be committed
  2. Under oath
  3. Personal service has to be provided on the defendant
  4. Must be a hearing
    * Violation of Injunction: Can seek civil contempt, criminal contempt, civil damages, or attorney’s fees
44
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Temporary Injunction:

A
  • Takes place immediately
  • Petitioner affidavit is all that is needed.
  • Only good for 15 days
    • To become permanent, need a hearing
  • Must be a reasonable belief of violence
45
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

General Injunction:

A
  • Court holds a hearing.
  • Notice is served.
  • Relief can be for a fixed period of time or until further order.
  • Mutual injunctions are prohibited by statute.
46
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Division of Property

A

Florida is an equitable distribution state.

  • Court may divide property without consideration of alimony. Cash may be awarded in a lump sum or through installments.
  • Requires:
    • financial affadavits
    • tax returns –3 years
    • Pay stubs ‐ 3 months of current income
    • Loan applications
    • Financial statements for the past year

Parties have an ongoing duty to disclose.

47
Q

FINANCIAL SUPPORT OF SPOUSES:

Jurisdiction:

Divisible and Ex Parte Divorces

A
  • Under doctrine of divisible divorce, if court has subject matter jurisdiction and personal jurisdiction over one party:
    • Court can grant divorce.
    • Court cannot rule on property, alimony, child support, etc.
  • Court needs personal jurisdiction over both parties to rule on those matters.
48
Q

FINANCIAL SUPPORT OF SPOUSES:

Tax Consequences

A
  • Taxes During the Marriage: Married couples are jointly and severally liable for tax obligations unless innocence is shown in fraud or wrongdoing.
  • Tax Consequences of Equitable Distribution:
    • Equitable distributions are not taxed as regular income.
    • Property transferred is tax‐free.
  • Tax Consequences of Alimony: Alimony is taxable income to the recipient and tax deductible to the payor.
49
Q

FINANCIAL SUPPORT OF SPOUSES:

Jurisdiction:

Full Faith and Credit

A

Florida gives FF&C to a divorce from another state that affects Florida property so long as the other state’s actions will be considered valid in Florida.

50
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support

A

alimony

  • Support in the form of income
  • Courts award alimony if one spouse cannot support their own needs with employment.
  • Can be awarded at anytie ‐ it can be awarded during and/or after the marriage
  • Can be awarded for any length of time
  • Cannot be discharged in bankruptcy
  • Alimony may be waived for consideration
51
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Bridge‐The‐Gap Alimony

A
  • Awarded to help a party transition to being single
  • Must be legitimate and specific to short‐term needs
  • May NOT exceed 2 years
  • May NOT be modified
  • Terminates upon death of either party or the remarriage of the party receiving alimony
52
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Rehabilitative Alimony

A
  • For a limited time
  • To help establish the spouse with new education, training, or employment
  • Purpose: improve earning capacity dependent spouse.
  • The plan must be specific and defined.
  • MAY be terminated or modified if: substantial change in circumstances
  • Remarriage does not necessarily terminate rehabilitative alimony – it is a factor to be considered.
53
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Permanent Alimony

A
  • For remainder of dependent spouse’s life (some exceptions)
  • Purpose: provide for the needs and life necessities of the dependent spouse.
  • Likelihood of permanent alimony award:
    • Long‐term marriage – most likely to be awarded (more than 17 years)
    • Moderate‐Term (7‐16 years) – only if “appropriate” based on factors
    • Short‐term (<7yrs) – only if “exceptional circumstances” exist
  • Court must find no other forms of alimony are fair and reasonable.
  • Modification or termination: “substantial change in circumstances.”
54
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

“Pendente Lite” (Temporary) Alimony

A

Applies from time of separation to time of dissoultion

  • Purpose: put parties on “equal footing.”
  • May vacate, modify or set aside for good cause
  • Retroactive modifications may go back to:
    • Entry of temporary order; or
    • Petition filing date.
      • NOT back to time of separation
  • Temporary alimony CANNOT be contracted away.
55
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support

A

Tip: Be sure to i.d. factors considered when determining alimony.

  1. Bridge‐The‐Gap Alimony
  2. Rehabilitative Alimony
  3. Permanent Alimony
  4. Durational Alimony
  5. “Pendente Lite” (Temporary) Alimony
  6. Palimony (Marvin v. Marvin 1976)
56
Q

FINANCIAL SUPPORT OF SPOUSES:

Jurisdiction:

Durational Residency Requirements

A
  • 1 spouse must have 6 months of residency in Florida.
  • Spouse does not need to be physically present in Florida for that period.
  • Court looks to intent
  • Shown by driver’s license, voter registration card, and/or testimony of a 3rd party
57
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Factors

A
  1. Financial Resources: Court considers financial resources of payee (person who will receive alimony) and the payor. Assets and property, non‐marital assets, child support payments, and earning potential of the parties.
  2. Standard of Living: Court looks to the standard of living during the marriage.
  3. Time: To help the payee find a job or gain further education
  4. Length of Marriage:
    • Short Term ‐ 0-6 years (<7 years)
    • Moderate Term ‐ 7-16 years (< 17 years)
    • Long Term ‐ 17 years+
  5. Contributions to the Marriage: Particularly those that enhanced earning potential of other spouse; E.g., homemaking, child care
  6. Age and Health
  7. Marital Misconduct: Adultery can be considered in support determination. BUT, current trend – did the adultery reduce marital assets?
  8. Children: Future responsibilities each has to common minor children
  9. Sources of Income: ALL sources of income
  10. Taxes: Taxes and tax consequences
58
Q

PATERNITY AND CHILDREN:

Paternity

A
  • Action to prove paternity may be brought by: (expecting) mother; child; & believing father
  • If paternity ordered/affirmed, costs may be awarded for: Birthing costs; Hospital costs; Medical expenses; Attorney’s fees; Child support; Custody; & Time sharing
  • If a father fails to file for paternity under Florida Putative Father Registry, he may be estopped from rebutting a petition for termination of parental rights.
    • Ex: Homer doesn’t file for paternity under Putative Father Registry and Marge brings petition to terminate his parenting rights. Homer cannot rebut that petition.
59
Q

Florida Marriage Rights:

Definition of Marriage

A
  • Civil contract - requires:
    • Consent
    • Exchange of consideration via mutual promises
    • Acceptance or imposition of rights & obligations associated with marriage
  • Termination: cannot occur unless there is state intervention
60
Q

Florida Marriage Rights:

License Requirements:

A
  1. Age
  2. 3-day waiting period
  3. Handbook and Course
61
Q

Florida Marriage Rights:

Ceremonial/Statutorial Marriage

A

Ceremonial Marriage:

  1. Solemnization (ceremony); and
  2. License
62
Q

License Requirements:

Waiting Period

A
  • Age - 18+, or 17 w/ parents’ consent and spouse is no more than 2 year older
  • Waiting period - 3 day waiting period between application date and effective date
63
Q

PATERNITY AND CHILDREN:

Marital Presumption

A
  • Married woman has child ‐ husband is presumed the father.
  • Marriage annulled ‐ child NO LONGER of marriage in Florida.
  • Child born within 9 months of divorce or husband’s death – child is marital.
  • Child support established in final decree (divorce) ‐ final determination of paternity.
  • Irrebutable presumption of paternity – artificial insemination during marriage and husband and wife consented.
64
Q

PATERNITY AND CHILDREN:

Estoppel

A

If husband NOT father: he may be estopped (prevented) from denying to pay child support if:

  1. He represented he would pay child support;
  2. Wife relied on that representation; AND
  3. Wife suffered economic deteriment
65
Q

PATERNITY AND CHILDREN:

Child:

Parental Kidnapping Prevention Act (“PKPA”)”

A

Applies to kidnapping cases and interstate parental responsibility disputes

66
Q

PATERNITY AND CHILDREN:

Child:

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):

A
  • Purpose is to prevent interstate jurisdictional disputes
  • Enacted in Florida
  • Court must possess subject matter jurisdiction.
67
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Factors Considered by the Court

A
  • Ability of the parents to provide the basic needs
  • Health of the parent
  • Willingness to promote relationship with other parent
  • Continuity of care in the child’s life
  • Who is the primary caregiver prior to the litigation
  • Wishes of child, if a mature age
  • Geographic location of each parent & travel time
  • History of domestic violence
  • Ability to protect the child from the litigation

Race MAY NOT be a factor.

Religion MAY be a factor.

68
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Third‐Party Rights

A
  • Legal parents presumptively get parental responsibility, unless:
    • Deemed unfit;
    • Detrimental to the child; or
    • Parent’s rights have been terminated.
  • Stepparent or grandparent has priority over a stranger.
  • Nonparents cannot bring parental responsibility proceedings, UNLESS part of a dependency hearing.
69
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Guardian Ad Litem

A

Legal counsel may be appointed for the child.

70
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Parenting Course

A

Each party must complete a court‐approved course.

71
Q

PATERNITY AND CHILDREN:

Children:

Shared Parental Responsibility

A
  • Both parents must be willing and able to cooperate with one another regarding the well‐being of the child.
  • FL prefers shared parental responsibility UNLESS it is NOT in the best interests and welfare of the child
  • Neither parent has a superior right
72
Q

PATERNITY AND CHILDREN:

Children:

Time‐Sharing

A
  • Plan that specifies when a parent will be with a child at certain times
  • Includes overnights, holidays, birthdays, school breaks, etc.
  • Guidelines for activities, education, childcare, foreign travel, etc.
  • Court establishes schedule if parents cannot agree.
73
Q

PATERNITY AND CHILDREN:

Children:

Sole Parental Responsibility

A
  • Shared parental responsibility is NOT in the best interests and welfare of the child
  • Other parent is unfit and unable to provide care
  • One parent has all decision‐making rights.
74
Q

PATERNITY AND CHILDREN:

Children:

Parrallel Shared Parental Responsibility

A
  • Court splits decision making based upon subject matter in which one parent has a special knowledge or skill.
  • E.g., medical or educational knowledge
75
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard

A
  • Default rule: a parent is in the best position to care for a child, unless deemed unfit.
  • FL ‐ one parent should be selected as the primary residence
  • Tip: Parental responsibility, visitation, and child support issues may be brought without a pending dissolution action.
76
Q

PATERNITY AND CHILDREN:

Personal Jurisdiction over Out‐of‐State Parent

A

To establish PJ over an out‐of‐state parent to enforce child support obligations or determine parentage:

  • Personal service on defendant;
  • Consent of defendant parent;
  • Current residency with child in state;
  • Past residency in state WITH paying expenses or support of child;
  • Child resides in state at direction of defendant;
  • Conception: Defendant had sex in state and MAY have resulted in child;
  • Defendant asserted parentage in putative father registry; OR
  • Other bases consistent with federal and state constitutions.
77
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Modification

A
  • Florida – “change in circumstances” standard
  • Must be substantial, material, and unforeseen from the prior order
  • Must be permanent, involuntary material, and unforeseeable at the time the final judgment was entered
  • Must be in best interest of the child and promote stability
78
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Modification:

Relocation

A
  • If more than 50 miles: Written consent from any party who has time‐sharing with child; or Court order.
  • Must show proof of employment and that the relocation is in best interests and welfare of the child
  • Failure to comply with pre‐relocation approval can subject the violator to contempt proceedings, as well as compel the child’s return to Florida.
  • Factors considered by the court:
    • Involvement of BOTH parents with child;
    • age and needs of child;
    • Current employment and financial circumstances of parents;
    • Child’s preferences;
    • Movant’s history of promoting parenting time;
    • Enhancing effect the child’s life;
    • Motive of each parent;
    • Whether child support payments are current;
    • Any domestic violence history
79
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Modification:

Military Service

A
  • Court may only modify order temporarily
  • Must be clear and convincing evidence that relocation is in the best interests of the child
  • Must revert back to original order after end of deployment
80
Q

PATERNITY AND CHILDREN:

Child:

Visitation and Parenting Time:

A
  • Visitation is in the best interests of the child.
  • Denying visitation is very unusual – only if seriously endangers child.
  • Third Parties: compelling state interest is required to give grandparents rights.
  • Sexual Relationship or Cohabitation: Can’t restrict visitation unless adverse impact on child
  • Electronic Communication: CAN’T supplant in‐person contact; Rebuttable presumption in favor of reasonable telephone communication ‐ must be ordered
81
Q

PATERNITY AND CHILDREN:

Children:

Parental Responsibility and Time‐Sharing

A
  • BOTH parents have parental responsibility & time‐sharing rights.
  • Each minor child ‐ frequent and continuing contact with BOTH parents.
  • Encouraged to share the rights, responsibilities, and joys of raising their children
  • If parents cannot work it out, courts will order a time‐sharing schedule in the best interests and welfare of the child

Tip: Custody is now referred to as parental responsibility.

82
Q

PATERNITY AND CHILDREN:

Acknowledgment

A

Father must pay child support if he “expressly acknowledges” in writing.

83
Q

PATERNITY AND CHILDREN:

Genetic Testing

A
  • Most common way to determine paternity
  • Court may order genetic testing of child, mother, and possible dads.
  • If indigent, state MUST pay for defendant’s test.
  • Results must be filed with court within 10 days.
  • 95% or greater means “presumptive paternity”
  • If test says “NOT father,” dismissed with prejudice.
84
Q

PATERNITY AND CHILDREN:

Disestablishment of Paternity

A
  • If man has been paying child support payments, he can terminate those payments if: Newly‐discovered evidence comes to light that he is NOT the father; Affidavit is filed; New evidence EXCLUDES the man; and Man is current in child support.
  • Relief MUST be granted: When child is UNDER 18 at time of petition; Testing was accurate; Man did not ADOPT child; Child was not from artificial insemination during marriage; & Man did not thwart biological father from asserting rights.
  • Relief cannot be granted if: Man voluntarily acknowledged paternity; Married the mother and voluntarily assumed parental obligations; Voluntarily expressed to support the child; OR Disregarded official notice of testing.
85
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Durational Alimony

A
  • Court orders economic assistance.
  • ONLY awarded if no other forms of alimony are suitable
  • Only for a short period of time
  • Usually only follows short‐term or moderate‐term marriage
    • Only applies in long‐term marriage if no other need for permanent support.
  • CANNOT be longer than the length of the marriage
  • Amount may be modified ‐ substantial change in circumstances.
  • Length can only be modified under exceptional circumstances.
86
Q

A valid marriage can end in 3 ways:

A
  1. ANNULMENT;
  2. DEATH; &
  3. DIVORCE

FL subjects (15 decks)

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