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Board Cert > Practice and Procedure > Flashcards

Practice and Procedure Flashcards

1
Q

What do you start with - SMJ or PJ?

A

SMJ

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2
Q

When does a court have SMJ over DOM?

A

6 months in state of FL prior to filing.

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3
Q

What will court consider in determining if resident of FL before filing?

A

Actual presence + intent to stay

Temporay absences ok

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4
Q

What is evidentiary basis to establish residency?

A

Clear and convincing

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5
Q

How does a person corroborate residency?

A

FL DL
Voter registration
FL ID card
Testmony/affidavit of NON SPOUSE

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6
Q

How does a court have SMJ over kid’s issues?

A

Look to UCCJEA - home state for 6 months

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7
Q

When is FL home state for kid per UCCJEA?

A

When child lived with parent OR PERSON ACTING LIKE A PARENT for 6 mo

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8
Q

WHen does FL have temporary emergency J under UCCJEA?

A

If child is present in state AND necessary to protect them

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9
Q

Can you raise a challenge to SMJ after FJ entered?

A

Yes, any time.

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10
Q

If FL is home state of child, and nothing financial, do you need to serve other parent?

A

Yes, but PJ established simply by home state

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11
Q

GA enters support order. J stays in GA if:

A

Either parent is in GA
Child is in GA
OR everyone files written consent to FL

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12
Q

If GA has support order, and W still lives in GA, can FL modify?

A

No, GA retains exclusive J

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13
Q

Standard of review on appeal for SMJ?

A

De novo

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14
Q

Can FL modify another state’s support order?

A

Only if other state no longer has CEJ.

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15
Q

How do you get personal J over someone?

A

Tag in FL

Long arm

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16
Q

What must you plead to establish long-arm J for divorce?

A

Maintaining matrimonial domicile in FL at time of filing
OR if D resided in FL before filing.

must plead specifically

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17
Q

How do you get long-arm J in paternity case?

A

Sex in FL that may have resulted in this kid

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18
Q

How do you contest long-arm J?

A

File affidavits, then burden switches to other party with more affidavits.

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19
Q

H objects to PJ. H files motion for temp fees to defend PJ. Has he submitted himself to FL J?

A

No. Can ask for fees to defend, but can’t do affirmative things

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20
Q

If you serve via long-arm, is it same as service of process in FL?

A

Yes, except your affidavit doesn’t need time/place/method of service

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21
Q

Can court order transfer of corporate assets from W to H?

A

No, unless corp is joined

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22
Q

When do you join someone to divorce?

A

If they have an interest in any claims

If company, “inextricably intertwined”

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23
Q

Do you need to join Corp if you are ordering W to transfer stock to H?

A

No, can just order.

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24
Q

H/W own company. Company owns house. Can court give house to H?

A

No, unless C is joined. No J over property owned by corp otherwise.

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25
Q

When can family/grandparent petition for temporary custody?

A

Permission from parents
OR
Risk of abuse/neglect AND the petitioner is a F/T caregiver already of child.

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26
Q

Gay couple don’t marry. Have a kid. Don’t adopt. Can court give timesharing to non-bio parent?

A

No.

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27
Q

If child wants to emancipate, what must they prove?

A

How to support themselves mentally and financially

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28
Q

If paternity is disestablished, can ousted dad get back CS? Or Arrears?

A

Nope

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29
Q

Can you serve person on Sunday?

A

No, unless affidavit for “good cause” that person will escape

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30
Q

Can you serve new spouse with service?

A

Yes, unless the new spouse is a party (think paternity intervention)

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31
Q

When is substitute service acceptable?

A

Usual place of abode, serve someone 15 or older, tell contents.
OR when spouse requests service unless spouse is party

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32
Q

What is process for constructive service?

A

File affidavit diligent serach/inquiry
Notice 1x/week for 4 weeks in newspaper in county
Notice must contain description of property to be distributed

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33
Q

Timeline to file answer?

A

20 days, unless accept service, then 60 days.

34
Q

WHere is venue proper?

A

County where D resides
OR where COA occurred
OR where property located

35
Q

Where is proper venue for DOM?

A

County where H/W resided w/ intent to remain married

36
Q

W thinks unfair trial in her venue. What must she do to transfer?

A

File verified motion

Attach 2 affidavits of non-family residents in support

37
Q

File motion for 57.105 fees. Is 12.285 required?

A

No

38
Q

What must be filed with modification of support petition?

A

Net income/deducations affidavit

39
Q

How long is lis pendens valid?

A

1 year

40
Q

What must be pled to get injunction?

A

Irreparable harm
AND no adequate remedy at law
AND legal right to relief
AND injunction will serve public interest

41
Q

What qualifies as repeat violence?

A

2 incidents, most recent in last 6 mo

42
Q

What qualifies as dating violence?

A

RElationship of affection/sex, but DO NOT live together

43
Q

What qualifies as sexual violence?

A

Sexual battery or sexual stuff with minors

44
Q

What qualifies as DV?

A

Being victim or reason to beleive imminent danger of becoming victim

45
Q

Can Buzz get DV injunction against JEff?

A

No, don’t live together

46
Q

Can you get 57.105 for DV/stalking/dating/repeat violence cases?

A

No for DV unless makes false statement on material matter.

47
Q

What must you prove to set aside default?

A

Excusable neglect
Meritorious defense
Due diligence

48
Q

Can you do summary jugment in famly law?

A

Yes

49
Q

What is standard for summary judgment?

A

No genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law

50
Q

Can you do a motion for summary judgment on fraud claim?

A

No, requires facts

51
Q

Can you have evidentiary hearing on summary judgment?

A

No

52
Q

What is standard to have physical/psych eval in DOM cases?

A

Party’s condition is IN CONTROVERSY and you must have GOOD CAUSE

53
Q

When does court exclude social investigation from consideration?

A

Not given to parties in advance, or no time to depose

54
Q

What can you respond to a request for admission?

A

Admit
Deny
I don’t know BUT ONLY IF you tried to find out

55
Q

How long until a case is dismised for lack of prosecution?

A

10 months

56
Q

What is pneumonic for 1.540 relief?

A

C MISEn Nev FMM V

57
Q

WHat does C MISEn Nev FMM V stand for

A 
Clerical
Mistake
Inadvertance
Surprise
Excusable Neglect

Newly discovered evidence

Fraud/mistake/misconduct

Judgment void/vacated

58
Q

What does the C in CMISEn Nev FMM V stand for?

A

Clerical error

59
Q

What does the MISEn in CMISEn Nev FMM V stand for?

A

Mistake, inadvertence, suprrise, excusable neglect

60
Q

What does the NEV in CMISEn Nev FMM V stand for?

A

Newly discovered evidence

61
Q

What does the FMM V in CMISEn Nev FMM V stand for?

A

Fraud
Mistake
Misconduct

Voide/vacated judgment

62
Q

W was in supportive relationship at tiral and got no alimony. boyfriend dies. Can she do 1.540?

A

Yes, boyfriend dying is new evidence, couldn’t have known.

63
Q

What must be alleged to disqualify judge?

A

Fear of a specifically described prejudice or bias

64
Q

What is process to disqualify?

A

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

65
Q

H wants to disqualify judge. Judge denies motion. Judge denies second motion. What can H do?

A

Appeal 2nd motion

Writ of prohibition

66
Q

When is child victim statement a hearsay objection?

A

Reliable statement

Kid testifies OR is unavailable and there is other, corroborating evidence

67
Q

What is an excited utterance?

A

Startling event
Statement made before time to misrepresent
Made while under stress of event

68
Q

Is there a husband/wife privilege?

A

Yes, but not in family law

69
Q

Standard to admit biz record?

A

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

70
Q

What are DAUBERT factors?

A

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.

71
Q

What is daubert pneumonic?

A

ESRR

72
Q

What is the E in ESRR

A

Expert with specialized knowledge

73
Q

What is S in ESRR

A

Sufficeint facts/data

74
Q

What is the R in ESRR?

A

Reliable principles and methods

Reliably applied to facts of this case

75
Q

What do you do if you don’t approve of Daubert expert?

A

Object, specifically ID source and substance of testimony that’s a problem and provide your expert testimony/literature to challenge.

76
Q

Can you tax travel costs against other side?

A

Not usually, unless special circumstances (zero local counsel, small town)

77
Q

Timeline for GM report exceptions/response

A

10 days to file exceptions, 5 days to respond to exceptions

78
Q

Are substance abuse records admissible in court?

A

Not without party consent or court order.

79
Q

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?

A

Divorce, custody.

80
Q

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?

A

Property rights, Alimony, child support, attorney’s fees = PJ required.

81
Q

W wants divorce from H in NYC. Needs to get long-arm J over him. What must she plead to get divorce?

A

Matrimonial domicile in FL when action began
OR
Resided in FL at commencement of action

82
Q

H pays CS. W files petition to modify. H files motion to temporarily reduce CS while petition pending. Response?

A

Deny, can’t reduce while petition pending.

Board Cert (17 decks)

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