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BOARD CERTIFICATION 2023 > OTHER TOPIC AREAS > Flashcards

OTHER TOPIC AREAS Flashcards

1
Q

What is needed to have a valid marriage

A
  1. Application from county judge or clerk of circuit court
  2. Issuance of license; and
  3. Ceremony by ordained minister, clergy, judicial officer, clerk of courts or notaries.
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2
Q

Is there a FL statute on annulment?

A

No - it is a question of common law.

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3
Q

How is the validity or invalidity of marriage examined?

A
  1. Capacity
  2. Consent
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4
Q

When is a marriage deemed voidable, rather than void?

A

Though the marriage may have been prohibited by law, parties can subsequently ratify when it has removed the disability or voiding impediment which was unknown to both parties at the time the invalid marriage was originally contracted

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5
Q

What is the effect on status of marriage that is void v. voidable

A

Void marriage is null from inception
Voidable marriage is valid until annulled

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6
Q

Who can raise an issue in a void v voidable marriage

A

Void - anyone can raise issue in any court proceeding
Voidable - only raised in a direct proceeding by the innocent party

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7
Q

When can issue be raised in void v voidable marriage

A

Void - anytime
Voidable - only while both parties are alive and defect not cured or ratified

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8
Q

Status of children born in void v voidable marriage

A

Void - children are illegitimate
Voidable - children are legitimate even if marriage is annulled

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9
Q

Effect of consummation of void v voidable marriage

A

void - consummation has no effect on validity of marriage
voidable - consummation may have affect on validity of marriage

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10
Q

What are two ways to attack marriage under capacity prong

A
  1. Bigamy - a bigamous marriage is VOID
  2. Age limitation - marriage license cannot be issued to people under 18
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11
Q

When can a marriage license be issued to persons under 18

A
  1. a 16 or 17 year old with written consent of parent or guardian or without consent if parents dead and minor previously married
  2. county judge may issue if both swear under oath they are parent of child
  3. county judge can issue with verification of pregnancy by DR if both are under 18 and testify under oath they are the expected parents and female under 18 and male of 18 and female states she is an expected parent
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12
Q

When is the only exception to when license can be issued to kid under 16

A

If parents or a kid or they are expecting

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13
Q

When can a marriage be annulled based on consent

A

(1) Fraud coupled with intent to deceive the other party through the act of marriage
-misrep # of prior marriages not enough
-failure to reveal criminal or medical fact insufficient

(2) duress/undue influence
(3) lack of mental capacity
(4) sham marriage (marriage for immigration only)
(5) no consummation of marriage

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14
Q

What are defenses to annulment

A

1.Laches / Equitable estoppel - no annulment if park seeking it doesn’t act within a reasonable time to raise an objection to the validity of marriage after becoming ware

  1. Ratification of fraud
  2. Clean hands - when if marriage voidable (e.g. bigamy) the spouse perpetrating fraud cannot use voidability to circumvent support for innocent spouse
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15
Q

What torts can be joined in a DOM

A
  1. Assault & battery
  2. Intentional infliction of emotional distress
  3. Negligent or intentional infliction of venereal disease
  4. Intentional interference with custody (brought against a nonparent such as grandparent for kidnapping)
  5. Wiretapping
  6. Fraud

ALWAYS CHECK STATUTE OF LIMITATIONS

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16
Q

When can cohabitation occur?

A
  1. Parties who have express written or oral agreement regarding relationship
  2. No such express agreement exists
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17
Q

What are the two trust theories often relied upon cohabitation scenarios?

A

Resulting Trust & Constructive Trust

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18
Q

When does a resulting trust occur

A

When a person’s money is used to purchase property that is deeded to another - vital element is intention, which will be presumed from facts.

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19
Q

When does constructive trust occur

A

Purely be construction of equity independently of any actual or presumed intention of the parties to create a trust. It is said to arise from actual or constructive fraud or from some other equitable principle independent of fraud.

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20
Q

What is necessary to impose a constructive trust

A
  1. a promise - express or implied
  2. transfer of property and reliance thereon
  3. a confidential relationship and
  4. unjust enrichment
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21
Q

When is a writ of certiorari used

A

When trial court departed from essential requirements of law

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22
Q

When is a writ of prohibition used

A

To prevent court from taking an action which exceeds its jurisdiction (can be issued be FL supreme court, DCA or circuit court)

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23
Q

when is a writ of mandamus used

A

Used to compel a public officer or agency to perform a ministerial duty required by law
(can be issued be FL supreme court, DCA or circuit court)

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24
Q

When is a writ of quo warranto used

A

To challenge an action taken by government officer
(can be issued be FL supreme court, DCA or circuit court)

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25
Q

What is the procedure to file a writ

A

You don’t file a notice in the lower court - you start by filing a petition directly to appellate court

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26
Q

What is a guardianship proceeding

A

Legal proceeding in which a guardian is appointed to exercise legal rights of an incapacitated person “ward”

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27
Q

Who is an incapacitated person

A

An adult who has been judicially determined to lack capacity to manage at least some of their property or meet some essential health and safety requirements of the person

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28
Q

What is the procedure to determine a person to be incapacitated?

A

Adult may file petition to determine capacity must set forth reasons why the believe person is incapacitated

Court then appoints a committee of 3 members - 2 drs and another expert - 1 of 3 must have knowledge of the type of alleged incapacity and submit a report regarding findings

Exam usually includes a physical exam mental health exam and functional assessment

Court also appoints attorney to rep person alleged incapacitated

If majority of committee concludes NO incapacity, judge required to dismiss

IF capacity - court schedules a hearing to determine if person is totally or partially incapacitated. If found incapacitate in any respect - guardian must be appointed at end of hearing unless less restrictive means

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29
Q

Who can be a guardian for guardianship action

A

-any adult related or unrelated in FL
-certain relatives outside of FL might
-Cannot appoint persons convicted of felony or incapable of duties of guardian
-Bank trust dept can be but only over property
-Nonprofit corp

30
Q

If parents die and child is beneficiary of life insurance policy what happens

A

If policy is more than $15k the court must appoint a guaridan

31
Q

Can court grant divorce if only one party has mental capacity

A

Yes BUT if one party incapacitated, they must be adjudicated incapacitated for 3 years prior to divorce in order to grant dissolution

32
Q

If notice for DOM served on a incapacitated party, who must it be served on

A

Nearest blood related of incapacitated person
Guardian

33
Q

In order for a spouse to change name in DOM what requirement must be met?

A

68.07 requires testimony that the name change is not for a fraudulent or criminal purpose

34
Q

What must a party do if they seek name change separately from divorce?

A

Must have finger prints taken & be submitted to state and national criminal history record check

and

Filed verified pleading and proof name change not for fraud or criminal purpose

35
Q

If a parent seeks name change for child, what must they include

A

Petitioner’s fingerprints have to be attached to petition
RARELY GRANTED - must prove BIC / welfare of child
Dad must be given notice

36
Q

What is required in every petition re military personnel

A

IF they are on active duty for more than 30 days - petition must say so.

If pled and military spouse fails to respond, P must file an affidavit with court showing if R is in military service with support facts in affidavit

37
Q

What happens if a spouse files fraudulent affidavit RE affidavit R’s military service?

A

It’s a federal crime

38
Q

What happens to a default judgment entered after pleading failed to recognize active duty spouse?

A

Can be set aside

39
Q

What is necessary in order for court to have jurisdiction over a military spouse`

A

Must plead long arm jurisdiction via matrimonial domicile and/or engaged in sex in FL in order to obtain personal jurisdiction over non resident military spouse

40
Q

What part of military pension can be divided

A

The Disposable Retired or Retainer Pay DRRP

41
Q

What is disposable retired or retainer pay?

A

Gross pay less debt owed to gov, amount waived to receive service connected disability, survivor benefit plan for spouse getting share of pension

42
Q

What should be included in a qualified order for military pension

A

Divide disposable retirement pay with a fixed number or %

43
Q

What is a post judgment concern with a VA pension

A

Parties could agree to disposable retirement pay with a fixed number or % but if that VA is still on active duty or the benefit doesn’t occur until after FJ then issues could arise bc the member can apply for “service connected disability” and effectively cut out former spouses share of pension. MUST INCLUDE INDEMNIFICATION LANGAUGE REQUIRING MEMBER TO NOT WAIVE REGULAR RETIREMENT TO EXTENT IT REDUCES FORMER SPOUSES’ SHARE OF REGULAR RETIREMENT

44
Q

When does federal pension jurisdiction exists?

A
  1. Resident of FL not due solely to military order
  2. Domiciliary of FL
  3. Consent to jur by signing MSA or asking for affirmative relief
45
Q

What method is typically used to divide a military pension

A

Deferred distribution method - we divide it when pension participant receives it

FL COVERTURE FRACTION FOR MILITARY PENSION

YEARS OF MARITAL PENSION SERVICE / YEARS OF SERVICE

CAUTION - FL DOES NOT INLCUDE POST JUDGMENT ENHANCEMENT TO A MILITARY PENSION AS PART OF ED SINCE IT IS NM

46
Q

What is the coverture fraction for a reserve pension ?

A

Marital retirement points / total retirement points / by 2

47
Q

What are defenses to military pensions?

A
  1. No jurisdiction
  2. Client has a bona fide disability and cannot work - rated at 50% disability but can’t work and needs pension to survive
  3. Bona fid resident of PR - which doesn’t require division on pension
48
Q

Can a military pension be insured

A

Yes - bc it terminates at death of member. But if parties are married at death - federal law required member to select survivor benefit plan with max rate for wife UNLESS parties agree in writing to waive benefit or take a lesser coverage

49
Q

what is the max rate for survivor benefit under military pension

A

55% of base retirement pay PLUS Cola

50
Q

Is a FORMER spouse insured if she was named a survivor during marriage

A

NO - MUST OBTAIN COURT ORDER NAMING FORMER WIFE AS IRREOVABLE SPOUSE BENEFICIARY OF SURVIVOR BENEFIT PLAN AT THE MAX RATE AND PERFECT THE COURT ORDER Y SERVING IT AND A “DEEMED ELECTION LETTER ON DFAS WITHIN 1 YEAR OF FJ”

51
Q

What happens if you fail to serve deemed election letter w/ 1 year if divorce and member remarries?

A

New spouse automatically becomes beneficiary

52
Q

Can a member agree to provide his Servicemen’s Group Life Insurance to his spouse?

A

No - it is void in state court. Member can change designation anytime. Court cannot even impose a constructive trust - no recourse.

53
Q

what does 20/20/20 mean

A

20 years or more of marriage
20 years or more of active military service or combo of active service and reserve serve producing “good” years of retirement
20 years of overlap between active/reserve service and years of marriage

54
Q

What does it mean if a nonmilitary spouse is 20/20/20

A

Spouse is entitled to full medical, commissary, exchange and theater privileges for life

55
Q

What date do we use to determine if a nonmilitary spouse 20/20/20 calculated

A

DATE OF FINAL JUDGMENT (NOT DOF)

56
Q

What are the conditions of benefits for a nonmilitary spouse 20/20/20

A

Former spouse has not remarried and does not have coverage under employer sponsor plan

57
Q

What does a 20/20/15 nonmilitary spouse receive

A

Gets 1 year of medical benefits for divorces after 9/30/1988

58
Q

What must the court do if the defendant is a servicemember?

A

Appoint a lawyer - even if they are absent, it’s better practice to always appoint one.

59
Q

What is the procedure for an absent military service member?

A

Court must grant a a stay of proceedings for a minimum of 90 days on application of counsel, or on the court’s own motion, if the court determines that:
* there may be a defense to the action and the defense cannot be presented without the presence of the defendant, or
* after due diligence, counsel has been unable to contact the defendant, or otherwise determine if a meritorious defense exists

60
Q

What happens if a default is entered during period of time defendant is in active service or within 60 days of termination or release from active service?

A

Court must reopen the judgment IF:
1. service member was materially affected bc of that military service
2. they have a meritorious claim

service member must file motion not more than 90 days after termination or release date from military service

61
Q

What type of military allowances should be included in 61.30 calculations

A

Allowances include basic allowance of housing and basic allowance for subsistence - the nontax amounts should be included in cs

62
Q

What other military benefits are included for cs

A

VA disability benefits
VA benefits
Oversees housing for period of deployment

63
Q

Can disability benefits be garnished?

A

Yes

64
Q

Are Cola adjustments after FJ subject to division per FL law?

A

Yes - bc these are passive in nature and not due to post marital effort

65
Q

What is needed under federal law for a spouse to take advantage of direct allotment provisions

A
  1. spouse must have been married 10 years during member active service
  2. Court must specific dollar amount or % spouse to receive
  3. If % used, recipient spouse will also receive share of COLA increases

If parties married less than 10 years - pension still subject to ED

66
Q

Can a party modify to seek a share of former spouses pension?

A

No - barred by res judicata. Once parties are divorced and property divided, it’s final.

67
Q

What is the test to determine the legal sufficiency of a motion to disqualify

A

Whether the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial

68
Q

What is the proper way to seek review of a motion to disqualify ?

A

Writ of prohibition

69
Q

What are proper grounds/basis for a motion to disqualify

A

Whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge.

It is an objective test viewed from the perspective of a reasonably prudent person armed with the information known to the moving party, subjective fears of the moving party are insufficient to require disqualification

70
Q

What four identities must apply for res judicata to apply

A

(1) identity of thing sued for
(2) identity of cause of action
(3) identity of persons and parties to the action, and
(4) identity of quality or capacity of persons for or against whom the claim is made.”

BOARD CERTIFICATION 2023 (20 decks)

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