Practice and Procedure Flashcards
What do you start with - SMJ or PJ?
SMJ
When does a court have SMJ over DOM?
6 months in state of FL prior to filing.
What will court consider in determining if resident of FL before filing?
Actual presence + intent to stay
Temporay absences ok
What is evidentiary basis to establish residency?
Clear and convincing
How does a person corroborate residency?
FL DL
Voter registration
FL ID card
Testmony/affidavit of NON SPOUSE
How does a court have SMJ over kid’s issues?
Look to UCCJEA - home state for 6 months
When is FL home state for kid per UCCJEA?
When child lived with parent OR PERSON ACTING LIKE A PARENT for 6 mo
WHen does FL have temporary emergency J under UCCJEA?
If child is present in state AND necessary to protect them
Can you raise a challenge to SMJ after FJ entered?
Yes, any time.
If FL is home state of child, and nothing financial, do you need to serve other parent?
Yes, but PJ established simply by home state
GA enters support order. J stays in GA if:
Either parent is in GA
Child is in GA
OR everyone files written consent to FL
If GA has support order, and W still lives in GA, can FL modify?
No, GA retains exclusive J
Standard of review on appeal for SMJ?
De novo
Can FL modify another state’s support order?
Only if other state no longer has CEJ.
How do you get personal J over someone?
Tag in FL
Long arm
What must you plead to establish long-arm J for divorce?
Maintaining matrimonial domicile in FL at time of filing
OR if D resided in FL before filing.
must plead specifically
How do you get long-arm J in paternity case?
Sex in FL that may have resulted in this kid
How do you contest long-arm J?
File affidavits, then burden switches to other party with more affidavits.
H objects to PJ. H files motion for temp fees to defend PJ. Has he submitted himself to FL J?
No. Can ask for fees to defend, but can’t do affirmative things
If you serve via long-arm, is it same as service of process in FL?
Yes, except your affidavit doesn’t need time/place/method of service
Can court order transfer of corporate assets from W to H?
No, unless corp is joined
When do you join someone to divorce?
If they have an interest in any claims
If company, “inextricably intertwined”
Do you need to join Corp if you are ordering W to transfer stock to H?
No, can just order.
H/W own company. Company owns house. Can court give house to H?
No, unless C is joined. No J over property owned by corp otherwise.
When can family/grandparent petition for temporary custody?
Permission from parents
OR
Risk of abuse/neglect AND the petitioner is a F/T caregiver already of child.
Gay couple don’t marry. Have a kid. Don’t adopt. Can court give timesharing to non-bio parent?
No.
If child wants to emancipate, what must they prove?
How to support themselves mentally and financially
If paternity is disestablished, can ousted dad get back CS? Or Arrears?
Nope
Can you serve person on Sunday?
No, unless affidavit for “good cause” that person will escape
Can you serve new spouse with service?
Yes, unless the new spouse is a party (think paternity intervention)
When is substitute service acceptable?
Usual place of abode, serve someone 15 or older, tell contents.
OR when spouse requests service unless spouse is party
What is process for constructive service?
File affidavit diligent serach/inquiry
Notice 1x/week for 4 weeks in newspaper in county
Notice must contain description of property to be distributed
Timeline to file answer?
20 days, unless accept service, then 60 days.
WHere is venue proper?
County where D resides
OR where COA occurred
OR where property located
Where is proper venue for DOM?
County where H/W resided w/ intent to remain married
W thinks unfair trial in her venue. What must she do to transfer?
File verified motion
Attach 2 affidavits of non-family residents in support
File motion for 57.105 fees. Is 12.285 required?
No
What must be filed with modification of support petition?
Net income/deducations affidavit
How long is lis pendens valid?
1 year
What must be pled to get injunction?
Irreparable harm
AND no adequate remedy at law
AND legal right to relief
AND injunction will serve public interest
What qualifies as repeat violence?
2 incidents, most recent in last 6 mo
What qualifies as dating violence?
RElationship of affection/sex, but DO NOT live together
What qualifies as sexual violence?
Sexual battery or sexual stuff with minors
What qualifies as DV?
Being victim or reason to beleive imminent danger of becoming victim
Can Buzz get DV injunction against JEff?
No, don’t live together
Can you get 57.105 for DV/stalking/dating/repeat violence cases?
No for DV unless makes false statement on material matter.
What must you prove to set aside default?
Excusable neglect
Meritorious defense
Due diligence
Can you do summary jugment in famly law?
Yes
What is standard for summary judgment?
No genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law
Can you do a motion for summary judgment on fraud claim?
No, requires facts
Can you have evidentiary hearing on summary judgment?
No
What is standard to have physical/psych eval in DOM cases?
Party’s condition is IN CONTROVERSY and you must have GOOD CAUSE
When does court exclude social investigation from consideration?
Not given to parties in advance, or no time to depose
What can you respond to a request for admission?
Admit
Deny
I don’t know BUT ONLY IF you tried to find out
How long until a case is dismised for lack of prosecution?
10 months
What is pneumonic for 1.540 relief?
C MISEn Nev FMM V
WHat does C MISEn Nev FMM V stand for
Clerical Mistake Inadvertance Surprise Excusable Neglect
Newly discovered evidence
Fraud/mistake/misconduct
Judgment void/vacated
What does the C in CMISEn Nev FMM V stand for?
Clerical error
What does the MISEn in CMISEn Nev FMM V stand for?
Mistake, inadvertence, suprrise, excusable neglect
What does the NEV in CMISEn Nev FMM V stand for?
Newly discovered evidence
What does the FMM V in CMISEn Nev FMM V stand for?
Fraud
Mistake
Misconduct
Voide/vacated judgment
W was in supportive relationship at tiral and got no alimony. boyfriend dies. Can she do 1.540?
Yes, boyfriend dying is new evidence, couldn’t have known.
What must be alleged to disqualify judge?
Fear of a specifically described prejudice or bias
What is process to disqualify?
CL files motion
Motion must be verified and list prior motions
Judge must rule immeidately only on legal sufficiency
If 2nd motion, judge can make findings and address specifics
H wants to disqualify judge. Judge denies motion. Judge denies second motion. What can H do?
Appeal 2nd motion
Writ of prohibition
When is child victim statement a hearsay objection?
Reliable statement
Kid testifies OR is unavailable and there is other, corroborating evidence
What is an excited utterance?
Startling event
Statement made before time to misrepresent
Made while under stress of event
Is there a husband/wife privilege?
Yes, but not in family law
Standard to admit biz record?
Record made at time
From information from a person with knowledge of record
Kept in ordinary course of business
Normal to keep such a record
What are DAUBERT factors?
Expert with specialized knowledge
Based on sufficient facts/data
Testimony is product of reliable principles and methods
Which are reasonably applied to the facts of this case.
What is daubert pneumonic?
ESRR
What is the E in ESRR
Expert with specialized knowledge
What is S in ESRR
Sufficeint facts/data
What is the R in ESRR?
Reliable principles and methods
Reliably applied to facts of this case
What do you do if you don’t approve of Daubert expert?
Object, specifically ID source and substance of testimony that’s a problem and provide your expert testimony/literature to challenge.
Can you tax travel costs against other side?
Not usually, unless special circumstances (zero local counsel, small town)
Timeline for GM report exceptions/response
10 days to file exceptions, 5 days to respond to exceptions
Are substance abuse records admissible in court?
Not without party consent or court order.
H/W married. W does NOT get long-arm J over husband in divorce. There are kids. What can court adjudicate in FL w/o personal J over him?
Divorce, custody.
H/W married. W does NOT get long-arm J over husband in divorce. There are kids. What can court NOT adjudicate in FL w/o personal J over him?
Property rights, Alimony, child support, attorney’s fees = PJ required.
W wants divorce from H in NYC. Needs to get long-arm J over him. What must she plead to get divorce?
Matrimonial domicile in FL when action began
OR
Resided in FL at commencement of action
H pays CS. W files petition to modify. H files motion to temporarily reduce CS while petition pending. Response?
Deny, can’t reduce while petition pending.
