florida family law Flashcards
how is family law tested?
- essay form ONLY
- 3 types of essay (2nd type includes a 3rd type)
1. people married and need divorce (kids and property)
2. modification: couple divorced and need to modify something (like move away to other state with kids)
marriage
Unlike other contracts, a marriage can only be terminated by the court; the parties need a judicial adjudication to terminate the marriage.
The government has a interest in the institution of marriage and can constitutionally impose some regulations.
Marriage is the foundation of a stable society and the primary way for families to provide a stable foundation for children
No need for separate consideration; there is a mutual exchange of love and affection
Same-sex marriages are valid in all states and all states must recognize a valid same-sex marriage from another state.
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ceremonial marriage
(1) no fraud, threat, duress, or mistake
(2) capacity: Mental capacity, not already married, age, and not too closely related by blood (consanguinity) or marriage (affinity)
* Mental capacity—capable of understanding the nature of the act of marriage
* age: The minimum age is 18, but 17-year-olds can marry if the minor has the consent of their parents or legal guardian; and The other party to the marriage is not more than 2 years older than the minor.
(3) Consanguinity
No full-blood relatives and no half-blood relatives.
No lineal descendants, but first cousins can legally marry in Florida.
Adoptive relatives can marry so long as they were not related prior to adoption.
(3) compliance with formalities
License
* age
* 3- day waitinf period, unless there is a waiver for: Good cause, Non-Florida resident, Completion of pre-marriage preparation course
* Verification of receipt and reading of Florida Family Law Handbook issued by the Florida State Bar on Marriage
* If the marriage license is lost or defective, then the marriage may be proved by 2 witnesses with affidavits regarding where the marriage took place or where the license was filed.
* A marriage license will not be issued if there is a lack of capacity: One of the parties is already married to someone else, The parties are too closely related, The parties are too young, The marriage is a sham, The parties are incapable of understanding the nature of the act
solemnization
* By a judge, political official, or clergy who certifies the license within 10 days and returns it to the licensing office.
* There is no requirement that a spouse takes the other spouse’s surname. If assumed, a spouse may revert to use a maiden name without legal process.
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Common Law Marriage
Abolished in Florida, but common-law marriages prior to 1968 are valid.
Florida courts will recognize, under the Full Faith & Credit Clause, valid common-law marriages from another state.
(1) Conduct and Cohabitation
* Parties must express or demonstrate that they believe they are currently married
* Jurisdictions vary regarding the burden of proof to prove a common-law marriage.
* the prevailing approach requires clear and convincing evidence
* Some jurisdictions require only a preponderance of the evidence.
* Cohabitation alone is NOT sufficient to establish a common-law marriage.
* Must look to the parties’ conduct, including:
* Joint finances, assets and debts;
* Common children;
* Signed documents as married: tax returns, insurance forms, school forms, medical documents
* Other conduct: rings, mail, family, neighbors, etc.
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Termination: Death, Annulment, and Divorce
(1) annulment
Voids a marriage as if it never happened
two types: void and voidable
* Void marriage—void ab initio
* Voidable marriage—valid until adjudicated void by the court
* Anyone can attack a void marriage; only the parties themselves can seek an annulment of a voidable marriage.
* A void marriage does not need a judicial adjudication; a voidable marriage is valid until judicially dissolved.
void marriages
1. Prior existing marriage—already married
2. Mental incapacity—did not understand the nature of the marriage contract
3. Incestuous marriage—too closely related by blood or marriage
voidable marriages
(1) Age—under the age of consent to marry
* If the minor continues to freely live and cohabitate with the other spouse AFTER reaching the age of consent to marry (18), then cannot seek an annulment (ratification).
(2) Impotence—naturally and incurably impotent, unless the other party knew before marriage
(3) Intoxication—either party was under the influence of drugs or alcohol, making that party incapable of entering into the marriage contract, UNLESS they continued to cohabit together (ratification)
(4) Fraud, misrepresentation, duress, coercion, or force—fraud or misrepresentation must go to the “essence of marriage” and be based on present, not future, facts
* Essentials of marriage do not include fortune or character
* If the parties continue to freely cohabitate after discovering the fraud, no longer voidable
(5) Lack of intent—sham or joke, unless consummated
* Limited purpose marriages, sometimes in the context of immigration purposes
Distribution of Property or Alimony
* Florida law is unclear on the division of property in an annulment. Most courts try to put the parties in the same position as they were prior to the marriage.
* Temporary alimony, called pendente lite, may be available during the pendency of the annulment.
defenses
* Recrimination—unclean hands
* Condonation—forgiveness
* Laches—too late
* Ratification—cohabitation after the defect is discovered
prenuptial and postnuptial agreements
prenuptial= entered into before marriage and in contemplation of marriage between prospectus spouses
postnuptial= after marriage
both can modify almost every right, except
1. right of child to receive child support
2. right to receive alimony pendente (temporary alimony)
requirements for prenuptials:
- has to be in writing
- signed by both parties
- consideration (getting married, if never married then it has no effect)
* can be modified/revoked afterwards when signed by both parties, no consideration needed
requirments for prenuptials: other contract defenses
can use any defense, like fraud, duress, coercion
requirments for prenuptials: unconscionable prenuptial agreements
- not enforceable
- BUT, under Uniform Marital Agreement, if the other party (to whom its not unconscionable for) had a fair and reasonable disclosure of poperty/financial obligations, then it will be enforced
Required Financial Disclosures
* Financial affidavits
* Three years of tax returns
* Paystubs for 3 months of current income
* Loan applications
marital agreements and division of property: premarital agreement –> uniform premarial agreement act (fl and majority rule)
Content includes: the division of property, alimony, and attorney’s fees upon divorce, separation, or death
Cannot determine child support or custody
Statute of Frauds applies (i.e., must be in writing)
Effective date is the date of marriage
Can only be amended, revoked, or abandoned by a writing signed by the parties
No separate consideration necessary
Validity and Enforcement
Modern approach—the agreement is presumed valid and enforceable if it meets the requirements
The burden of having the agreement not enforced is on the party trying to avoid the agreement.
Requirements
* in writing
* Voluntarily executed;
* No fraud, duress, coercion, or overreaching and
* Was not unconscionable at the time of execution
(1) Voluntary with no fraud, duress, coercion, or overreaching; factors:
* Time pressure to execute the agreement
* Lack of legal counsel or opportunity to obtain
legal counsel
* Education
* Business sophistication or saavy
* Age
* Health
* Language proficiency
(2) Unconscionable at the time of execution, if:
* No fair and reasonable disclosure of assets and financial obligations
* Did not waive such disclosure; AND
* The party did not have knowledge and could not have
reasonably obtained knowledge of such assets and obligations.
requirements for postnuptials
no consideration required
1. in writing
2. signed by both parties
3. full disclosure of property and financial obligations OR completion of discovery
modification of porperty settlement agreement and equitable distribution
- prohibited
*once a property settlement agreement/portion is reached, can NEVER be modified - finality of decision
- equitable= once court divides property, CANT change
- Exception: Fraud—motion must be filed within 1 yr
dissolution of marriage
Divorce
dissolution of marriage: jurisdiction
- florida circuit court generally has jurisdiction over divorces
- subject matter jurisdiction: at least one party must hvae been a resident for 6 mos
Personal jurisdiction
* Minimum contacts;
* Physical presence;
* Property in the state; or
* Consent
ex parte (divisible) divorce—the court divisible the issues to be adjudicated
* Typical divorce proceedings cover: marital status, propery division, alimony, child support, child custody, and attorney’s fees
* If the court lacks personal jurisdiction over one of the parties, the court may issue a divorce adjudication as to status only; without personal jurisdiction, the court cannot adjudicate issues of property, alimony, or children
Simplified Dissolution Procedure—County Court (versus Circuit Court)
* The purpose is to avoid the need for attorneys.
* Requirements: no minor children, the wife is not pregnant, and all assets and debts are amicably divided
* Parties must file a financial affidavit, financial disclosures, and draft a settlement agreement
* This procedure waives a trial and appeal.
dissolution of marriage: no-fault divorce
- fl is no-fault divorce
- MUST say this in essay
- only need to prove marriage is “irretrievably broken” or Incapacity—spouse must be adjudicated mentally incompetent for at least 3 years prior to filing
- if both parties admit to this, its entered into evidence
- if one party denies, judge must
1. continue case for up to 3 mos to allow the couple to reconcile (pause case)
2. order counseling before granting divorce (case continues)
3. do what judge thinks is in best interest of parties and children - does not matter who is at “fault” in divorce, EXCEPT for alimony
dissolution of marriage: residency requirements
must have actual intent to reside in fl (have been resident for 6 mos with intent)
equitable distribution
- process court divides marital assets and liabilities
- assets: car, house (mostly tested)
- liability: debt, mortgage (Rarely tested)
- ed: presumes equal distribution, unless factors show unequal distribution is warranted
equitable distribution: identifying marital assets and liability
- court only has jurisdiction over marital assets
- marital= 50/50 distribution
- identified the instance divorce is filed
- marital assets
1. all property acquired during marriage
2. inter-spousal gifts
3. property owned as tenants by the entirety
4. personal poperty titled jointly
5. retirement plans **accumulated in marriage **
6. Personal injury proceeds—allocated between marital and nonmarital property depending on the replacement of the particular award: Award for pain and suffering is non-marital property but Award for lost wages during marriage is marriage and award for medical expenses is marital
7. Goodwill of a marital property business is marital property
8. Form of title is not determinative of the characterization unless it is titled as tenants by the entirety (marital property)
9. Debts are equitably divided
10. enhancement of non-marital assets, resulting from efforts of either party during marriage
equitable distribution: non-marital assets and liabilities
- property acquired before marriage **OR/AND **acquired in exchange of such property (owned car before marriage, then married and sold car- that money is non-marital)
- assets acquired separately by non-interspousal gift or acquired in exchange of such property (like your brother or a will gave it to you)
- income derived from non-marital assets, unless converted for marital purposes
- Professional licenses and degree
- Expectancy (possible future interest)
- Social Security benefits
- any assets excluded in pre/post-nup
equitable distribution: passive vs active appreciation of non-marital assets
- enhancement of value of non-marital asset
- over time, increase of value in property (house/stock) subject to equitable distribution (AKA marital)
- passive= due only to market forces (non-marital)
- active= when you use time, $, efforts to increase value, the added value is marital
equitable distribution: date of valuing marital assets
whatever date judge finds fair and equitable
equitable distribution: factors to consider when making an equitable distribution
judge can consider
1. economic circumstances of the party
2. contribution of 1 party to home and care and education children
3. duration of marriage
4. career and educational sacrifices
5. Contributions to the education or career of the other spouse
6. Interest of one spouse to retain an asset such as a business or professional practice
7. Contributions to the production of income or incurring liabilities
8. Intentional destruction of marital property
9. Retention of the marital residence for children
10. Any other factors the court finds “necessary and just”
equitable distribution: examples
H and W divorced in FL. which of the following items subject to ED (aka Marital)
1. house bought during marriage and held in TBE
2. guest cottage owned by W prior ot marriage which W and H renovated
3. antique pair of shoes H got as gift before marriage to W from his dad
4. a watch W gave to H as gift during marriage
5. W’s retirement opened before marriage which increased by 50x during marriage
6. engagement ring H gave W before marriage
7. wedding rings purchased and used by H for wedding
8. harry’s premarital home which both parties lived in during marriage and paid down mortgage
- yes
- no, but if it was active appreciation then that amount is marital, because they both renovated it
- no
- yes
- depends on active vs passive
- no if h ended engagement, but if w ended engagement then yes
- same as before
- yes
ED primary residence of kids
in ed, if primary residence of kids distribution of property can be delayed (until kids older, in best interest of children)
alimony
1 spouse’s need for $, and ability for other party to pay it
MUST say this in essay!
(1) Factors in Determining Whether to Award Alimony
* Financial resources
* Standard of living
* duration of marriage
* Age and health
* Earning capacity, education, vocational skills, employability
* Time to acquire employment training or education
* contributions to the marrigae: enhancing career, homemaking, child care
* Responsibilities to minor children
* Tax consequences
* Marital misconduct if such conduct resulted in a dissipation of marital assets
* Imputation of income (when one spouse is voluntarily unemployed or underemployed)
* Any other factor necessary to do equity and justice
alimony: adultery
The court can consider adultery and the resulting economic impact on setting alimony amounts
alimony: modification
can be modified based on substantial change of circumstance in one or both parties
Supportive relationships can terminate all types of alimony
alimony: types
- temporary or pendente lite
- bridge-the-gap
- rehabilitative
- durational
**ALL TYPES **based on need vs ability to pay
* judge can award none/all/some/one of these alimony types
alimony: length of marriage
short term= 0-10
medium= 10-20
long= 20+
alimony: temporary/pendente lite
- awarded during pendency of proceeding (During discourse, partner has enough $ to live)
alimony: bridge-the-gap
- CANNOT be modified
- legit need to help spouse transition from married to single life
- NOT to exceed 2 yrs, terminates on death of either party/remmariage of recipient
alimony: rehabilitative
- designed to help party develop skills and training
- rehab plan outline must be available
- help the party become self-sustainable
- modify based on substantial change in circumstances
- terminated by failure to follow/or upon completion of plan, or supportive relationship
- limited to 5 yrs in length
alimony: durational alimony
- for a certain amount of yrs.
- cannot exceed length of marriage
- can not be awarded for marriages less than 3 years in length.
- An award of durational alimony may not exceed 50% percent of the length of a short-term marriage (0-10 yrs), 60% the length of a moderate-term marriage (10-20), or 75% of the length of a long-term marriage (20+). (50-60-75 rule).
- modifiable by substantial change/supportive relationship
parenting plan
- parties married and have kids.
- plans how parents will parent
- consists of time sharing plan doc and parental responsibility doc
- Standard for **BOTH is BASED ON BEST INTEREST OF THE CHILD **
parenting plan- time sharing plan
determines how much time each parent gets with child
other factors (besides best interest of child)
1. time parent can spend with child
2. Ability to provide for the child’s needs
3. Primary caregiver prior to divorce
2. moral fitness
3. whether parent will encourage close relationship with other parent
4. reasonable preference of child (depending on their age)
5. Division of parental responsibilities
6. Geographic location of the parties and travel time
7. Health of parents
8. capacity to provide stability
9. domestic violence
10. capacity to communicate with the other parent
11. substance abuse
12. capacity to protect child from litigation
13. any other factor relevant to the parenting plan
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Other Factors
Religion or race—Religion may be a factor, but race cannot be a factor
Parents’ sexual conduct—Not a factor unless there is direct evidence of a negative impact on the child
Third party rights
* Parents are presumptively entitled to parental responsibilities unless:
* The parent is deemed unfit
* It is detrimental to the child; or
* Parent’s rights have been terminated
Child’s preference
* May be considered if the child is of sufficient maturity
* No statutory age
* Child cannot testify or be deposed absent court order for good cause or an emergency
Siblings—Courts avoid separating siblings
Domestic violence
* Must be considered in determining parental responsibility
* Conviction of a first-degree misdemeanor or greater
results in a rebuttable presumption of a detriment to the child
* child support is still owed
HIV / AIDS—not a factor, but the parent may be required to follow recommended safety precautions
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Electronic Communication Between Parent and Child
Does not replace in-person contact
There is a rebuttable presumption in favor of in person contact
Not used to calculate child support
The court will consider:
* best interests of the child
* Availability and affordability of electronic communication
* History of substance abuse or domestic violence
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Parenting Course—Each parent must complete a court-approved parenting course.
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Modification of Parenting Responsibility and Time-Sharing
There must be a essential, material, and unanticipated change in circumstances AND best interests of the child
(1) Relocation Over 50 Miles
Written relocation agreement from the other parent or anyone who has time-sharing with the child with access for time-sharing and travel arrangements, OR court order
Factors
* Involvement of and relationships with parents, siblings, and other important people
* Age and needs of the child
* Employment and financial circumstances
* Child’s preference if of sufficient maturity
* History of promoting parenting time
* Whether the move will enhance the child’s quality of life
* Motives of the parents
* Whether child support is current
* History of domestic violence or substance abuse
* any other factor regarding the child’s best interest
(2) Military Service
Uniform Deployed Parents Custody and Visitation Act—Enacted in Florida in 2018
past deployment or possible future deployment is not a factor in determining the best interests of the child.
(3) termination
The parental responsibility order terminates:
* At the death of the custodial parent; or
* When the child reaches the age of majority (18)
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Enforcement of Parental Responsibility and Time-Sharing Orders
Failure to pay child support is not grounds to refuse time sharing.
Failure to honor time-sharing remedies:
* Make-up time
* Attorney’s fees and costs
* Parenting course
* Community service
* modify parenting plan
If there is a risk the child will be removed from the state, the court can:
* Order the child’s passport be surrendered
* Order the parent to post a bond or other security
* Restrict travel to only those countries that are part of the Hague Convention
parenting plan- parental responsibility
- MUST be established when minor children involved
- can be sole with advisement, sole without advisement, or parallel shared
- presumption of shared parental reposbility unless not in best interest of child.
- Parallel Shared Parental Responsibility is split decision-making rights between parents, usually based on a parent’s unique or special expertise or skills in a particular area
- which parent gets to make decision on behalf of child:
1. school
2. religion
3. doctors
child support
- cannot be waived
- right belongs to child
- duty of BOTH parents to support minor
- parent with less visitation, pays cash to parent with more visitation (living vs not living)
- until child is 18/legally emancipated
- exceptions
1. duty to pay extends if child is 18-19 and still in highschool
2. child physically/mentally dependent (continues until no longer dependent- could be until death)
3.child emancipated (at least 16 yo and in best interest of child)
(1) Amount of Support: Income Shared Model
Takes a equal part of both parents’ income on the theory that the child should receive the same percentage of income from both parents had the parents remained married.
All sources of income are included, but not public assistance
Income can be imputed for voluntary unemployment or voluntary underemployment
Child support guidelines set forth a rebuttable
presumption of correct calculation
Court may deviate up or down by 5% from the presumptive amount
If there is more than a 5% deviation, the court must set forth findings of fact to explain and support the deviation
* Age of child
* child’s special needs and expenses
* Standard of living
* Station in life
* parents finances
Child support orders must provide for health insurance unless it is not accessible and unreasonable
Childcare costs must be included in the total support
First children first: subsequent children are only considered regarding an increase in support
Post-secondary education: no financial obligation
(2) Modification of Child Support
substantial change in circumstances
* at least a 15 or 50% difference in the resulting calculation (whichever is greater) from the prior order
* The burden is on the party seeking modification
* There is an imputation of income for a voluntary reduction in income
* Incarceration:
* The obligor must file a petition seeking modification.
* Payments are suspended, but monies still accrue.
* Can be retroactive to the date of filing for modification, but cannot modify previously accured child support obligation
child support: sanctions for failure to pay
Civil and/or criminal contempt
Garnish wages of obligor parent
Child Support Recovery Act: it is a federal crime if it is unpaid for over a year or more than $5000 is due
interception of tax refunds
Credit reporting
suspend driver’s license
Professional license suspension
Seize property and assets
Attorney’s fees
Uniform Interstate Family Support Act: collection of out-of-state support
Full faith and credit for child support orders
