Florida Family Law Flashcards
CHILD SUPPORT:
Medical Insurance
- 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
CHILD SUPPORT:
Enforcement of Child Support Awards:
Other Sanctions
- Intercept tax refunds
- Suspend driver’s license
- Suspend professional licenses
- Report to Credit Bureau
- Seize property or assets
- Attorney’s fees
CHILD SUPPORT:
Enforcement of Child Support Awards:
Criminal Contempt
- Jail term imposed for willful failure to pay.
- Must be proved beyond a reasonable doubt
CHILD SUPPORT:
Enforcement of Child Support Awards:
Child Support Recovery Act
- 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
CHILD SUPPORT:
Enforcement of Child Support Awards:
Full Faith and Credit for Child Support Orders Act (“FFCCSOA”)
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.
CHILD SUPPORT:
Enforcement of Child Support Awards:
Enforcement in Other Jurisdictions
- 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.
CHILD SUPPORT:
Enforcement of Child Support Awards:
Withholding Income
- 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.
CHILD SUPPORT:
Enforcement of Child Support Awards
Enforced through:
- Civil contempt orders
- Income withholding (wage garnishment)
CHILD SUPPORT:
Post‐Secondary Education
- No obligation to pay for post‐secondary education.
- EXCEPTION: Mentally or legally dependent after 18 or may agree to pay for it.
CHILD SUPPORT:
Modification of Child Support:
Incarceration
- 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.
CHILD SUPPORT:
Modification of Child Support:
Changes in the Child’s Circumstances
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
CHILD SUPPORT:
Subsequent Children
- 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.
CHILD SUPPORT:
Modification of Child Support:
Substantial Change in Parent’s Circumstances
- 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.
CHILD SUPPORT:
Jurisdiction for Modification of Support
Only two ways to move jurisdiction:
- Neither party nor child live in court of continuing jurisdiction; or
- By agreement of the parties.
If neither bases are present, new state should not modify a child support order.
CHILD SUPPORT:
Enforcement of Child Support Awards:
Civil Contempt
- 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.
CHILD SUPPORT:
Based on?
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”
CHILD SUPPORT:
Sources of Support Sources:
- 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.
Common‐Law Marriage:
Florida doesn’t permit C-L marriages. Unless before 1968. Does, however, recognize C-L marriages from other states pursuant FFC.
-
Requirements:
- Mental Capacity
-
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.
DIVISION OF PROPERTY AND ATTORNEY’S FEES:
Specific Types of Marital Property:
Professional License or Degree?
Goodwill?
Expectancy?
-
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
DIVISION OF PROPERTY AND ATTORNEY’S FEES:
Marital Property
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
DIVISION OF PROPERTY AND ATTORNEY’S FEES:
Factors in the Distribution of Marital Property
- 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”
DIVISION OF PROPERTY AND ATTORNEY’S FEES:
Attorney’s Fees
- 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
DIVISION OF PROPERTY AND ATTORNEY’S FEES:
Exceptions to Marital Property
- 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.
DIVISION OF PROPERTY AND ATTORNEY’S FEES:
Specific Types of Marital Property:
Retirement or Pension Benefits
- 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.
Annulment
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
Annulment:
Voidable Marriage
- 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
Annulment:
Voidable Marriage:
Fraud, Misrepresentation, Duress, Coercion, Force
- 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.
Annulment:
Voidable Marriage:
Lack of Intent
- Meant as a joke or done in jest
- However, if the marriage was later consummated
then it CANNOT be annulled.
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Divorce
a legal dissolution of a marriage
Grounds for Divorce:
- Incapacity
- No Fault
-
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
Simplified Dissolution Procedure
- County court
- No legal counsel
- Requirements:
- No minor kids
- Wife not pregnant
- All assets are amicably divided
-
Must file
- financial affidavit,
- financial disclosures, and
- draft a settlement agreement
Marital Agreements:
Postnuptial
- 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
Marital Agreements:
Premarital Agreement (“Pre‐nup”)
- 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
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Separation Agreement
- 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
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Property Settlement Agreement
- 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.
Validity of Marital Agreements:
5 Elements
The agreement must be:
- In writing
- signed
- fair & reasonable
- voluntary &
- based on full disclosure
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Validity of Marital Agreements:
Full Disclosure
- 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.
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Validity of Marital Agreements:
Fair and Reasonable
- Factors to consider: age, health, wealth, etc.
- Bases for “unfair” or “unreasonable” are:
- Fraud
- Duress
- Undue Influence
- Media Misconduct (bias toward a party)
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Validity of Marital Agreements:
Voluntary
- 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.
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Validity of Marital Agreements:
Impoverished Spouse
If an agreement leaves a spouse impoverished, court MAY set it aside even if fair, reasonable, voluntary, and full disclosure.
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Validity of Marital Agreements:
Modifying Marital Agreements
- 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.
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Domestic Violence:
Abuse in the form of
Abuse can take the form of:
- Assault
- Battery
- Sexual battery
- Kidnapping
- Stalking
- False Imprisonment
- Other acts that results in injury or death
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Domestic Violence:
Protected Parties
- 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.
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Domestic Violence:
Relief
injunction–primary or general
Requirements:
- An act has been committed OR a “reasonable belief” of act to be committed
- Under oath
- Personal service has to be provided on the defendant
- Must be a hearing
* Violation of Injunction: Can seek civil contempt, criminal contempt, civil damages, or attorney’s fees
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Domestic Violence:
Temporary Injunction:
- 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
ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:
Marital Agreements:
Domestic Violence:
General Injunction:
- 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.
DIVISION OF PROPERTY AND ATTORNEY’S FEES:
Division of Property
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.
FINANCIAL SUPPORT OF SPOUSES:
Jurisdiction:
Divisible and Ex Parte Divorces
- 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.
FINANCIAL SUPPORT OF SPOUSES:
Tax Consequences
- 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.
FINANCIAL SUPPORT OF SPOUSES:
Jurisdiction:
Full Faith and Credit
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.
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support
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
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support:
5 Types of Support:
Bridge‐The‐Gap Alimony
- 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
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support:
5 Types of Support:
Rehabilitative Alimony
- 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.
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support:
5 Types of Support:
Permanent Alimony
- 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.”
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support:
5 Types of Support:
“Pendente Lite” (Temporary) Alimony
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.
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support:
5 Types of Support
Tip: Be sure to i.d. factors considered when determining alimony.
- Bridge‐The‐Gap Alimony
- Rehabilitative Alimony
- Permanent Alimony
- Durational Alimony
- “Pendente Lite” (Temporary) Alimony
- Palimony (Marvin v. Marvin 1976)
FINANCIAL SUPPORT OF SPOUSES:
Jurisdiction:
Durational Residency Requirements
- 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
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support:
Factors
- 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.
- Standard of Living: Court looks to the standard of living during the marriage.
- Time: To help the payee find a job or gain further education
-
Length of Marriage:
- Short Term ‐ 0-6 years (<7 years)
- Moderate Term ‐ 7-16 years (< 17 years)
- Long Term ‐ 17 years+
- Contributions to the Marriage: Particularly those that enhanced earning potential of other spouse; E.g., homemaking, child care
- Age and Health
- Marital Misconduct: Adultery can be considered in support determination. BUT, current trend – did the adultery reduce marital assets?
- Children: Future responsibilities each has to common minor children
- Sources of Income: ALL sources of income
- Taxes: Taxes and tax consequences
PATERNITY AND CHILDREN:
Paternity
- 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.
Florida Marriage Rights:
Definition of Marriage
- 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
Florida Marriage Rights:
License Requirements:
- Age
- 3-day waiting period
- Handbook and Course
Florida Marriage Rights:
Ceremonial/Statutorial Marriage
Ceremonial Marriage:
- Solemnization (ceremony); and
- License
License Requirements:
Waiting Period
- 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
PATERNITY AND CHILDREN:
Marital Presumption
- 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.
PATERNITY AND CHILDREN:
Estoppel
If husband NOT father: he may be estopped (prevented) from denying to pay child support if:
- He represented he would pay child support;
- Wife relied on that representation; AND
- Wife suffered economic deteriment
PATERNITY AND CHILDREN:
Child:
Parental Kidnapping Prevention Act (“PKPA”)”
Applies to kidnapping cases and interstate parental responsibility disputes
PATERNITY AND CHILDREN:
Child:
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):
- Purpose is to prevent interstate jurisdictional disputes
- Enacted in Florida
- Court must possess subject matter jurisdiction.
PATERNITY AND CHILDREN:
Children:
Best Interests and Welfare of the Child Standard:
Factors Considered by the Court
- 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.
PATERNITY AND CHILDREN:
Children:
Best Interests and Welfare of the Child Standard:
Third‐Party Rights
- 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.
PATERNITY AND CHILDREN:
Children:
Best Interests and Welfare of the Child Standard:
Guardian Ad Litem
Legal counsel may be appointed for the child.
PATERNITY AND CHILDREN:
Children:
Best Interests and Welfare of the Child Standard:
Parenting Course
Each party must complete a court‐approved course.
PATERNITY AND CHILDREN:
Children:
Shared Parental Responsibility
- 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
PATERNITY AND CHILDREN:
Children:
Time‐Sharing
- 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.
PATERNITY AND CHILDREN:
Children:
Sole Parental Responsibility
- 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.
PATERNITY AND CHILDREN:
Children:
Parrallel Shared Parental Responsibility
- Court splits decision making based upon subject matter in which one parent has a special knowledge or skill.
- E.g., medical or educational knowledge
PATERNITY AND CHILDREN:
Children:
Best Interests and Welfare of the Child Standard
- 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.
PATERNITY AND CHILDREN:
Personal Jurisdiction over Out‐of‐State Parent
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.
PATERNITY AND CHILDREN:
Enforcement, Modification, and Termination of Parental Responsibility Order:
Modification
- 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
PATERNITY AND CHILDREN:
Enforcement, Modification, and Termination of Parental Responsibility Order:
Modification:
Relocation
- 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
PATERNITY AND CHILDREN:
Enforcement, Modification, and Termination of Parental Responsibility Order:
Modification:
Military Service
- 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
PATERNITY AND CHILDREN:
Child:
Visitation and Parenting Time:
- 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
PATERNITY AND CHILDREN:
Children:
Parental Responsibility and Time‐Sharing
- 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.
PATERNITY AND CHILDREN:
Acknowledgment
Father must pay child support if he “expressly acknowledges” in writing.
PATERNITY AND CHILDREN:
Genetic Testing
- 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.
PATERNITY AND CHILDREN:
Disestablishment of Paternity
- 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.
FINANCIAL SUPPORT OF SPOUSES:
Spousal Support:
5 Types of Support:
Durational Alimony
- 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.
A valid marriage can end in 3 ways:
- ANNULMENT;
- DEATH; &
- DIVORCE
